Citation Nr: 18143541 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-63 634 DATE: October 19, 2018 ORDER Service connection for venous insufficiency of both lower extremities is granted. Service connection for bilateral pes planus and plantar fasciitis is granted. FINDINGS OF FACT 1. The probative evidence of record is at least in equipoise as to whether the Veteran’s venous insufficiency of both lower extremities is etiologically related to his active duty service. 2. The probative evidence of record is at least in equipoise as to whether the Veteran’s bilateral pes planus and plantar fasciitis are etiologically related to his active duty service. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for venous insufficiency of both lower extremities have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for bilateral pes planus and plantar fasciitis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from March 1953 to March 1955. These matters are on appeal from a November 2014 rating decision. These issues were previously remanded by the Board in June 2017 to afford the Veteran a VA examination. The Agency of Original Jurisdiction (AOJ) has done so. There was substantial compliance with the remand directives with regard to the issues being decided below. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also remanded the issues of entitlement to service connection for degenerative arthritis of the low back and radiculopathy of the lower extremities. In an October 2017 rating decision, VA granted service connection for degenerative arthritis of the lumbosacral spine and radiculopathy of the left and right lower extremities. As this represents a full grant of the benefits sought with respect to those issues, they are no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) The Board notes that all of the Veteran’s service treatment records were destroyed in a fire. The United States Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because of the missing records, the analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Venous Insufficiency The Veteran has a current diagnosis of venous insufficiency of both lower extremities, which he contends is etiologically related to his active duty service. In a May 2014 statement, the Veteran ascribed his leg symptoms to steel inserts in combat boots worn during his active duty service. The Veteran was afforded a VA examination in June 2017. The examiner diagnosed venous insufficiency of both lower extremities. The examiner opined that it was more likely than not that this was incurred in or caused by his active duty service. The examiner’s rationale was that the Veteran’s report that his left leg swelling started during his active duty service was credible, it is more likely than not that his military service required prolonged standing, and prolonged standing is a risk factor for venous insufficiency. The June 2017 VA examiner also opined that it was at least as likely as not that the Veteran’s left total knee replacement was incurred in or caused by his active duty service but, because VA granted service connection for the residuals of left knee replacement surgery in an October 2017 rating decision, that issue is not before the Board. Because the AOJ found that the June 2017 VA examination was insufficient to evaluate the severity, as opposed to the etiology, of the Veteran’s venous insufficiency, the Veteran was afforded an additional VA examination in January 2018. This examiner also diagnosed venous insufficiency but found that it was less likely than not related to the Veteran’s active duty service because “[p]oor fitting footwear is not an established etiology of venous insufficiency in the medical literature.” The examiner opined that the Veteran’s venous insufficiency was most likely due to congestive heart failure. The medical evidence of record includes a diagnosis of venous insufficiency of both lower extremities. Of the two VA examiners, one provided a positive nexus opinion and the other provided a negative nexus opinion. Each discussed a different theory of causation: the favorable opinion focused on the effect of prolonged standing and the unfavorable opinion focused on the effect of ill-fitting boots. The examiners’ rationales are equally thorough and persuasive. The Board finds that the evidence is in equipoise. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran’s favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s venous insufficiency of both lower extremities is etiologically related to his active duty service. Accordingly, the Board finds that granting service connection for venous insufficiency of both lower extremities is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). 2. Pes Planus and Plantar Fasciitis The Veteran has current diagnoses of bilateral pes planus and plantar fasciitis, which he contends are etiologically related to his active duty service. In a May 2014 statement, the Veteran ascribed his foot symptoms to steel inserts in combat boots worn during his active duty service. The Veteran was afforded a VA examination in June 2017. The examiner diagnosed bilateral pes planus and plantar fasciitis. The examiner noted that flat feet and prolonged walking are considered to be risk factors for plantar fasciitis and opined that it is more likely than not that the Veteran’s active duty service required prolonged walking. However, the examiner opined that plantar fasciitis should have resolved after separation unless it was due to his flat feet. Because the Veteran’s service treatment records are unavailable, the examiner found that it was impossible to opine as to the etiology of his pes planus without resorting to speculation. However, the Board notes that the examiner found the Veteran’s statements regarding his duties and symptoms credible with regard to other issues throughout the examination report. The medical evidence of record includes diagnoses of bilateral pes planus and plantar fasciitis. The VA examiner found the Veteran generally credible and found it plausible that the Veteran’s current plantar fasciitis could have been caused by pes planus and prolonged walking during active duty service, but only if pes planus was related to service. The examiner also found that it was impossible to provide a nexus opinion with regard to pes planus without access to service treatment records that no longer exist. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran’s favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s bilateral pes planus and plantar fasciitis are etiologically related to his active duty service. Accordingly, the Board finds that granting service connection for bilateral pes planus and plantar fasciitis is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ryan Frank, Counsel