Citation Nr: 18154456 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 17-29 489 DATE: November 30, 2018 ORDER New and material evidence having been received the claim for service connection for bilateral plantar fasciitis is reopened, and to that extent only the claim is granted. Service connection for bilateral plantar fasciitis is denied. REMANDED Service connection for a neck disability is remanded. FINDINGS OF FACT 1. In a December 2001 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for bilateral plantar fasciitis; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the December 2001 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral plantar fasciitis. 3. The Veteran’s bilateral plantar fasciitis is not related to military service. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim seeking service connection for bilateral plantar fasciitis is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for bilateral plantar fasciitis have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1997 to March 2001. Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran’s claim of service connection for bilateral plantar fasciitis in a December 2001 decision, finding that the Veteran did not have a current disability. The Veteran was provided notice of this decision and her appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2001). The evidence received since the December 2001 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, VA examinations and treatment records showing plantar fasciitis. This new evidence addresses the reason for the previous denial; that is, evidence of a current disability, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened and will be considered on the merits. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran asserts her bilateral plantar fasciitis is a result of her active service. Specifically, she asserts that she did not have plantar fasciitis prior to military service, that she was diagnosed with plantar fasciitis in the military and that she continues to have flare-ups. See March 2016 Notice of Disagreement. Service treatment records reflect that the Veteran underwent a bunionectomy in October 1998. The Veteran complained of bunion, arch and heel pain and reported wearing orthotics. She was diagnosed with plantar fasciitis, postural/mechanical lower back pain and right hallux valgus. At separation, examination of the feet was normal; the Veteran endorsed foot trouble which was described as fractured metatarsals treated with foot surgery. The Veteran underwent VA-contracted examination in May 2001. The examiner reported that there was no tenderness so no diagnosis of plantar fasciitis was warranted. During the August 2015 VA examination for foot conditions the Veteran reported pain and difficulty walking; however, the examination is absent diagnosis for plantar fasciitis. The Veteran underwent VA examination in May 2017. The examiner diagnosed plantar fasciitis and bilateral bunions status-post bunionectomies with current complaints of fasciitis. The Veteran reported she broke both sesamoid bones during active duty and reported the sesamoid bone chips were removed and three bunion repairs were done during active duty. She reported that she developed plantar plain during active duty and uses arch supports to relieve her pain. The examiner reviewed the evidence of record and opined that the Veteran’s plantar fasciitis is less likely as not incurred in or caused by the plantar fasciitis during service. The examiner noted that the Veteran did not have bilateral plantar fasciitis at post-operation and the Veteran was able to ambulate after surgery. She reported the condition on discharge was described as stable with no documentation of any difficulty with ambulation. The examiner explained that the Veteran has surgically corrected bilateral bunions and no medical evidence of a continued cause of fasciitis. She noted multiple notes during active duty document no plantar fasciitis. The Board of Veterans’ Appeals (Board) finds the VA opinion highly probative as it was performed by a medical professional after examination of the Veteran and a review of the medical history and lay statements of the Veteran. There is no medical evidence in significant conflict with the opinion of the VA examiner. In fact, the multiple reports in the service treatment records and in the years after service indicating plantar fasciitis was not present supports the examiner’s opinion. Thus, the most probative medical evidence is against the claim. A veteran is competent to describe symptoms that she is able to perceive through the use of her senses and to give evidence about what she has experienced. To that extent the Veteran contends that she has consistently experienced plantar fasciitis and was given custom shoe inserts. She contends that if her treatment records indicate no arch pain it is likely because she was in a period of remission at that time not because her plantar fasciitis had healed. She asserts that she did not seek treatment because she was told during her military service that there was nothing more that could be done to treat plantar fasciitis. See June 2017 VA Form 9. Here, the record reflects that the Veteran trained as a medical specialist during military service. The Board acknowledges the Veteran’s statements and recognizes that the Veteran may have medical training and knowledge superior to a lay person; however, the most probative evidence of record does not reflect that the Veteran’s current bilateral plantar fasciitis is etiologically related to active service. The Veteran asserts that her disability has continued since service and has described symptoms related to plantar fasciitis; however, the evidence of record weighs against her assertions. While the Veteran reported foot trouble at separation, examination of the feet was normal and the foot trouble described by the Veteran at the time dealt with her foot surgery and not plantar fasciitis. Notably, the May 2001 VA examiner specifically noted she could not provide a diagnosis for plantar fasciitis and plantar fasciitis was not diagnosed during the August 2015 examination. The Board affords greater probative value to the May 2017 VA examiner’s opinion, as it was offered after careful review of the history of the disability, is in keeping with the findings of other examiners who were tasked with identifying foot disabilities but could not diagnose plantar fasciitis, and as the opinion is supported by a clear rationale. In summary, the preponderance of the evidence is against a finding that the Veteran has current bilateral plantar fasciitis related to active duty service. Thus, the claim for service connection is denied. REASONS FOR REMAND The Veteran asserts that her current neck disability is related to military service. She asserts that she injured her neck on active duty while performing rifle exercises and from carrying a rucksack and that she has had neck pain and decreased range of motion since. The record reflects the Veteran receives treatment from her private chiropractor for neck pain. The May 2017 examiner diagnosed cervical spine degenerative disc disease and degenerative joint disease. She opined that the neck disability was less likely as not incurred in or caused by the cervical strain during service. She explained that service treatment records document a pre-existing neck injury and there is no established neck condition or aggravation of a neck condition documented during active duty. She reported that a 1997 x-ray of the cervical spine was normal and there was no documented treatment until 2015. She reported magnetic resonance imaging (MRI) findings of degenerative disc disease/ degenerative joint disease are not associated with a neck strain but are consistent with a prior motor vehicle accident as reported in the medical record. Service treatment records reflect that no defects were noted at entrance examination, and the Veteran is presumed sound upon entering active duty service. As such, the Board finds remand is warranted to obtain a supplemental medical opinion to address the etiology of the Veteran’s cervical spine disability and whether there is clear and unmistakable evidence that the Veteran’s disability pre-existed active service or was aggravated beyond normal progression by active service. The matter is REMANDED for the following action: Send the file to an appropriate examiner to review and offer an opinion as to the following: (a.) Whether it is clear and unmistakable that the Veteran had a neck disability that pre-existed entry into military service. The evidence establishing preexistence should be specifically identified if the examiner finds a pre-existing disability. (b.) If a neck disability clearly and unmistakably pre-existed service, the examiner should comment on whether that disability clearly and unmistakably was not aggravated during service. If the severity of the disability increased during service, the examiner is asked to address whether the increase was clearly and unmistakably due solely to the natural progression of the disability. (c.) If it is not clear and unmistakable both that a neck disability pre-existed service and was not aggravated by service, the examiner should assume the Veteran was without a neck disability at entry into service. With this in mind, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current neck disability onset during military service or is otherwise related to her military service. (Continued on the next page) As the Board is precluded from making any medical determinations, a rationale for all opinions offered is necessary for the opinion to be adequate for adjudication purposes. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel