Citation Nr: 1807531 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-16 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for peripheral neuropathy. 2. Entitlement to service connection for bilateral plantar fasciitis. 3. Entitlement to service connection for a back condition (previously denied as back pain) as secondary to bilateral plantar fasciitis. REPRESENTATION Appellant represented by: Virginia Girard-Brady, Attorney-at-Law ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The appellant had active service from March 1979 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Roanoke, Virginia. The issues of service connection for plantar fasciitis and a back disorder as secondary to plantar fasciitis are addressed in the remand portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC) in Washington DC. FINDING OF FACT Any current peripheral neuropathy is not of service origin. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy are not met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131 (West 2014); 38 C.F.R. § 3.303(a) (2017). Certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year. 38 C.F.R. §§ 3.307 , 3.309(a). Organic diseases of the nervous system, to include peripheral neuropathy, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); see also Nix v. Brown, 4 Vet. App. 462, 466 (1993). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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 Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran maintains that his current peripheral neuropathy had its onset in and is related to his period of service. A review of the Veteran's service treatment records reveals no complaints or findings of any neurological problems, including peripheral neuropathy. Treatment records associated with the claims file reveal that the Veteran was given a provisional diagnosis of idiopathic peripheral neuropathy in August 2010, more than 30 years subsequent to service. The Board finds that the weight of the evidence, both lay and medical, does not demonstrate that any current peripheral neuropathy had its onset in service. Service treatment records do not reveal any findings or diagnoses of neurological problems during service. Furthermore, as noted above, the Veteran post-service treatment records confirm that he was not diagnosed with neuropathy until 2010, more than 30 years following his separation from service. The Veteran has asserted that he has experienced peripheral neuropathy since service. Such recent assertions of continuity, however, are inconsistent with, and outweighed by, other lay and medical evidence of record. On his initial application for compensation, the Veteran did not report having neurological problems. This suggests to the Board that there were no pertinent neurological problems or symptomatology at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for peripheral neuropathy at the time of the initial application for benefits, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not suffer from peripheral neuropathy since service, or the lack of peripheral neuropathy symptomatology at the time he filed the claim, or both. This contemporaneous evidence outweighs and is more probative than are his assertions voiced years later and in connection with a claim for disability benefits. The above evidence is more probative than are his assertions, voiced well beyond his period of service, that any claimed peripheral neuropathy is related to his period of service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). For these reasons, the Board concludes that the assertions of peripheral neuropathy since service are not credible. The Veteran has related his peripheral neuropathy to his active service. While the Veteran, as a lay person, is competent to describe observable symptoms such as pain and while lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, an opinion as to the etiology and onset of peripheral neuropathy falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377, n.4 (lay persons not competent to diagnose cancer). The Veteran's lay statements on the question of relating any current peripheral neuropathy to service are not competent in the present case. See Davidson, 581 F.3d at 1316 (Fed. Cir. 2009); Kahana, 24 Vet. App. at 433, n. 4 (2011). Such diagnoses require clinical or diagnostic testing that the Veteran is not competent to address. Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. The Veteran was afforded the opportunity to provide competent medical evidence or a competent opinion relating his current peripheral neuropathy to his period of service. He has not provided either medical evidence or an opinion to support that proposition. Furthermore, there is no competent medical evidence of record relating any current peripheral neuropathy to the Veteran's period of service. In this case, peripheral neuropathy was not shown during active service or for many years thereafter, including no chronic symptoms during service. The weight of the competent evidence demonstrates that any current peripheral neuropathy was neither incurred in nor related to active service. For these reasons, the Board finds that service connection for peripheral neuropathy is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for peripheral neuropathy is denied. REMAND As it relates to the claim of service connection for plantar fasciitis, the Board notes that in connection with the claim, the appellant was afforded a VA examination in March 2017. The Board observes that the examiner rendered an opinion that the Veteran's flat feet (which clearly and unmistakably existed prior to service) were not aggravated beyond their natural progression by the condition shown on entrance exam and complaints shown for pes planus during service. He further noted that review of the STRs showed that the Veteran was erroneously diagnosed with pes planus at enlistment and that he more accurately had rigid pes planovalgus which referred to a condition of the foot in which the medial longitudinal arch height was abnormally decreased along with a significant loss of midfoot and hindfoot motion. He indicated that known causes for this condition were well documented and consisted of congenital vertical talus, tarsal coalition conditions, and peroneal spastic flatfoot without coalition. He stated that after three months in service he was discharged and that there was no evidence of aggravation and/or worsening of this condition. Unfortunately, the examiner did not address whether the Veteran had plantar fasciitis nor did he render an opinion as to the etiology of any plantar fasciitis, if found, and, its relationship, if any, to his period of service. As such, the Veteran should be afforded a VA examination to determine the etiology of any current plantar fasciitis, and its relationship, if any, to the Veteran's period of service. As it relates to the claim of service connection for a low back disorder, the Veteran has indicated that it is his belief that his current low back disorder is caused and/or aggravated by his plantar fasciitis. Therefore, this issue is inextricably intertwined with his plantar fasciitis claim. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Moreover, as this matter is in remand status, an additional attempt should be made to obtain additional service treatment records, to include attempting to obtain a service separation examination and/or medical history, or Medical Board Evaluation. Accordingly, the case is REMANDED for the following action: 1. As this matter is in remand status, once again attempt to obtain additional service treatment records from all possible sources for the period of active service, to include attempting to obtain service separation medical examination reports and/or medical history, and/or any and all medical board proceedings prepared in conjunction with separation from service. If no further records are found, a report should be prepared detailing what attempts were made, with notice being given to the Veteran along with an opportunity to provide any service treatment records which may be in his possession. 2. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current plantar fasciitis and any low back disorder. All indicated tests and studies should be performed and all findings should be reported in detail. The entire record should be made available to the examiner. The examiner is requested to render the following opinions: (a) Did the Veteran's current plantar fasciitis, if found, clearly and unmistakably (obvious, manifest, undebatable) pre-exist his period of active service? (b) If it is your opinion that the plantar fasciitis clearly and unmistakably preexisted service, is there clear and unmistakable evidence that plantar fasciitis was not aggravated by service, either because there was no increase in disability during service or because any increase in disability was due to the natural progress of the preexisting condition? (c) If you conclude that plantar fasciitis did not clearly and unmistakably pre-exist service, is it at least as likely as not (probability 50 percent of more) that any current plantar fasciitis had its onset in service? As to the low back disorder, the examiner is requested to render the following opinions: (a) Is it as likely as not (50 percent probability or greater) that any low back disorder is caused by plantar fasciitis? (b) If not, is it at least as likely as not (50 percent probability or greater) that any current low back disorder is aggravated by plantar fasciitis? If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. Complete detailed rationale is requested for each opinion that is rendered. 4. The RO must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action must be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing all indicated development, readjudicate the remaining issues. If any benefit sought on appeal is not granted, the Veteran and his attorney should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs