Citation Nr: 1825656 Decision Date: 04/26/18 Archive Date: 05/07/18 DOCKET NO. 14-33 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence had been received to reopen a previously denied claim of entitlement to service connection for a left foot disability. ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel INTRODUCTION The appellant served on active duty in the United States Air Force from June 1997 to July 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. In an April 2012 rating decision, the RO denied service connection for a left foot disability, to include heel pain. The appellant was notified of the RO's determination and his appellate rights in an April 2012 letter, but he did not appeal within the applicable time period, nor was new and material evidence received in the year following notification of the decision. 2. Evidence received since the final April 2012 rating decision denying service connection for a left foot disability, is related to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the service connection claim. 3. A left foot disability was not present during active service and the most probative evidence indicates that the appellant's current left foot plantar fasciitis is not causally related to his active service or any incident therein, nor is it causally related to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The April 2012 rating decision denying the claim of entitlement to service connection for a left foot disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011). 2. New and material evidence has been received to warrant the reopening of the previously denied claim of entitlement to service connection for a left foot disability. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for left foot plantar fasciitis have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The appellant has not raised any issues with the duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Applicable Law In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis under 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The standard of proof to be applied in a decision on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. §5107(b); see also 38 C.F.R. §§ 3.102; 4.3. "This unique standard of proof is in keeping with the high esteem in which our nation holds those who have served in the Armed Services. It is in recognition of our debt to our veterans that society has through legislation taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is an 'approximate balance of positive and negative evidence.' By tradition and by statute, the benefit of the doubt belongs to the veteran." Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Analysis New and Material Evidence In an April 2012 rating decision, the RO denied the appellant's claim for entitlement to service connection for a left foot disability because there was no evidence of a current disability, nor was there evidence of an event, disease, or injury in service. The appellant was informed of the decision and his appellate rights in an April 2012 letter. He neither perfected an appeal within the applicable time period, nor was new and material evidence received by the RO within one year of the April 2012 letter. Thus, the Board finds that the April 2012 rating decision is final. In June 2013, the appellant submitted an application for benefits claiming entitlement to service connection for bilateral foot pain. As the appellant was already service connected for plantar fasciitis for the right foot, the RO contacted the appellant to clarify the nature of the claim. The appellant, at that point, informed the RO that the application was intended to be a claim to reopen the previously denied left foot disability claim and a claim for an increased rating for his service connected plantar fasciitis of the right foot. In connection with this claim, the appellant was sent for a VA contract examination in July 2013, wherein he was diagnosed with left foot plantar fasciitis. At the examination, the appellant reported that his left foot pain began during service and that he had left foot plantar fasciitis when he got out of service. The Board finds that this additional evidence is new, as the appellant did not have a diagnosis of any left foot disability at the time of the final April 2012 decision, nor was there any evidence of an in-service event, injury or disease. Further, the Board finds that this evidence is material. Presuming its credibility, it relates to unestablished facts necessary to substantiate the claim. Accordingly, the Board finds that the appellant's previously denied claim for entitlement to service connection for a left foot disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Turning to the merits of the claim, the Board notes that the Justus presumption of credibility does not attach after a claim has been reopened. Rather, in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility, and therefore the probative value, of proffered evidence in the context of the record as a whole. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); see also Shade v. Shinseki, 24 Vet. App. 110, 124 (2010) (noting that "[n]ew and material evidence is evidence that - if found credible - would either entitle the claimant to benefits or to some further assistance from the Secretary in gathering evidence that could lead to the granting of the claim. Of course, once a claim is reopened, the adjudicator may determine that the new evidence is not credible or is outweighed by other evidence."). In this particular case, the Board finds that the evidence already of record, including the report from the July 2013 VA medical examination and December 2013 addendum, is sufficient to decide the claim. Because the RO reopened the claim and conducted the appropriate development, to include obtaining an adequate examination, the Board finds that the duty to assist has been met. Neither he nor his representative has argued otherwise. Moreover, because the RO has considered the appellant's claim on the merits, the Board's consideration of the claim on the merits will not result in prejudice to him. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection for Left Foot Plantar Fasciitis After finding the facts sufficient to reopen the claim, the Board must turn to the issue of whether service connection is warranted for the appellant's left foot plantar fasciitis. The appellant asserts that he experienced left foot pain while in service, during basic training and technical school, and that his left foot plantar fasciitis is related to his in-service left foot symptoms. In general, to establish direct service connection, a Veteran 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 present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). To establish service connection on a secondary basis, a Veteran must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board notes that the appellant was diagnosed with left foot plantar fasciitis during a July 2013 VA contract examination. The Board therefore finds that the appellant has a current disability. Turning to the second element of direct service connection, an in-service injury or incurrence of a disability, the Board finds that the preponderance of the evidence is against a finding that the appellant had a left foot disease or injury while in service. The appellant's service treatment records document his complaints of right foot pain while he was in active service. In August 1997, the appellant reported and was treated on multiple occasions for pain in his right forefoot that was worse with running. He was diagnosed with right foot metatarsalgia and overuse syndrome. He was given reduced duty and a reduced exercise routine as a result. His service treatment records, however, contain no evidence of complaints or findings of a left foot disease, injury or symptoms. The Board has considered the appellant's statements that he experienced left foot pain in service during basic training at the same time he was experiencing and being treated for his right foot pain and that he he had left plantar fasciitis when he left active duty. However, the Board finds that had the appellant, in fact, been experiencing left foot pain during active service, he would have reported it in the clinical setting and it would have been recorded when he reported symptoms of his right foot. Moreover, had left foot plantar fasciitis been present in service, it would have been recorded on one of the occasions in which he was treated for right foot complaints, including when he was diagnosed as having right foot metatarsalgia and overuse syndrome. Cf Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803(7))); see AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Board assigns more probative weight to the contemporaneous record than to the appellant's later recollections made in the context of a claim for monetary benefits. Under these circumstances, the Board finds that the most probative evidence establishes that a left foot disease or injury was not present in service. With respect to the third element necessary to establish direct service connection, the Board finds that the preponderance of the evidence is against the claim. In December 2013, VA obtained a medical opinion on the etiology of the appellant's left foot plantar fasciitis. After a thorough review of the record, to include the appellant's lay statements, the opinion concluded that the appellant's condition was not at least as likely as not related to his active service. Reviewing the appellant's records, the examiner correctly noted that the appellant did not have a left foot disease or injury while in active service. This, the examiner concluded, would prevent a finding of a direct causal link to service. The Board similarly finds that the preponderance of the evidence is against a finding of secondary service connection. Although service connection is in effect for right foot plantar fasciitis, the most probative evidence establishes that the appellant's left plantar fasciitis is not causally related to or aggravated by his service-connected right foot disability. The clinician who provided the December 2013 addendum explained that the clinical evidence showed that when the appellant was examined by VA in January 2001, February 2012, and July 2013, he did not exhibit an abnormal gait. Considering this evidence, the examiner found that the appellant's left foot plantar fasciitis was not secondary to his right foot plantar fasciitis, nor aggravated by it. The examiner explained that this is because plantar fasciitis is an anatomic condition caused by inflammation and does not transfer from one foot to the other. The examiner stated that if the right foot was causing issues in the left foot, there would be evidence of an abnormal gait, which the appellant has not claimed and which the record has not demonstrated on clinical testing. The Board has considered the appellant's contentions that he believes his left foot plantar fasciitis is related to his active service. Although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination of the origin of plantar fasciitis is a medical question not subject to lay expertise. See Jandreua v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The condition involves a pathological process that is not readily observable to a layperson. The Board finds that in light of the non-observable nature of the pathology, the issue of the origin of the appellant's left foot plantar fasciitis is a medical question requiring medical training, expertise, and experience. Therefore, the Board finds that the medical opinion provided in December 2013 outweighs the appellant's lay opinion. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). As such, the Board finds that the preponderance of the evidence is against entitlement to service connection for left foot plantar fasciitis. ORDER New and material evidence having been received, the previously denied claim for entitlement to service connection for a left foot disability, to include plantar fasciitis, is reopened. Entitlement to service connection for left foot plantar fasciitis is denied. _________________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs