Citation Nr: 18136229 Decision Date: 09/19/18 Archive Date: 09/18/18 DOCKET NO. 16-10 343 DATE: September 19, 2018 ORDER A rating in excess of 10 percent for plantar fasciitis, left foot, from September 10, 2007 to November 29, 2009 is denied. A compensable rating for plantar fasciitis, left foot, from May 8, 2010 to September 26, 2010 is denied. A 10 percent rating, but no more, for plantar fasciitis, left foot, from December 9, 2011 to May 30, 2015 is granted, subject to the payment of monetary benefits. A 10 percent rating, but no more, for plantar fasciitis, left foot, since September 4, 2015 is granted, subject to the payment of monetary benefits. Service connection for a traumatic brain injury (TBI) is denied. Service connection for a respiratory disorder, to include a chronic cough, is denied. FINDINGS OF FACT 1. The Veteran had active service from July 1982 to January 1987, May to November 1989, June 1990 to January 1991, February 2006 to September 2007, November 2009 to May 2010, September 2010 to December 2011, and May to September 2015. 2. The Veteran was on active duty in the Southwest Asia Theater during the Persian Gulf War, to include service in Iraq, from August 2006 to August 2007 and from December 2010 to September 2011. 3. From September 10, 2007 and November 29, 2009, the left foot disability was manifested by subjective complaints of left heel pain that was worse with the first step in the morning and upon transferring from nonweight bearing position to weight bearing position; objective findings included pain to palpation in the medial plantar aspect of the left heel and normal muscle strength in the left foot. 4. From May 8, 2010 and September 26, 2010, the left foot disability was manifested by subjective complaints of pain in his left talofibular ligament; objective findings included no tenderness over the anterior talofibular ligament and no ankle effusion. 5. From December 9, 2011 and May 30, 2015, the left foot disability was manifested by subjective complaints of left foot pain; objective findings included resolved plantar fasciitis and calcaneal spurs. 6. Since September 4, 2015, the left foot disability has been manifested by subjective complaints of left foot pain; objective findings have included accentuated pain on use of his left foot, and no objective evidence of a marked deformity, indications of swelling on use, or characteristic callouses. 7. A TBI is not shown. 8. A respiratory disorder, to include a chronic cough, is not causally or etiologically related to service, to include in-service exposure to environmental hazards during the Persian Gulf War, and does not have objective symptoms of an undiagnosed illness or a medically unexplained chronic multi-symptom illness causing a respiratory disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for plantar fasciitis, left foot, from September 10, 2007 to November 29, 2009 have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.114, Diagnostic Code (DC) 5276 (2017). 2. The criteria for a compensable rating for plantar fasciitis, left foot, from May 8, 2010 to September 26, 2010 have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.114, DC 5276 (2017). 3. The criteria for a rating of 10 percent, but no more, for plantar fasciitis, left foot, have been met from December 9, 2011 to May 30, 2015. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.114, DC 5276 (2017). 4. The criteria for a rating of 10 percent, but no more, for plantar fasciitis, left foot, since September 4, 2015 have been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.114, DC 5276 (2017). 5. A TBI was not incurred in active service. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.310, 3.317 (2017). 6. A respiratory disorder, to include a chronic cough, to include as due to in-service exposure to environmental hazards during the Persian Gulf War, was not incurred in active service. 38 U.S.C. §§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.310, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s left foot plantar fasciitis is rated under DC 5276 for flatfoot. The Board will also consider all relevant diagnostic codes. In order to warrant a higher rating, the evidence must show: • moderate flatfoot, as evinced by a weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet (10 percent). • severe flatfoot, as manifested by objective evidence of a marked deformity, accentuated pain on manipulation and use, indications of swelling on use, and characteristic callosities (20 percent). The Board will consider each period in turn. From September 10, 2007 to November 29, 2009 In medical treatment notes between August 2008 and November 2008, the Veteran reported that he had a history of heel and arch pain in his left foot. He explained that in 2007, he started having left heel pain with his first step in the morning. While his pain diminished after walking, it returned when he shifted from a nonweight bearing position to a weight-bearing position. He noted that while strapping helped him obtain some relief, he continued to experience moderate pain. Clinicians observed pain to palpation in the medial plantar aspect of his left heel and medial ankle and diagnosed plantar fasciitis, acute heel pain, and tarsal tunnel syndrome. In a November 2008 VA examination, the examiner noted mild tenderness in the Veteran’s right ankle and a positive Tinnel sign to the left tarsal tunnel. The examiner diagnosed no issues outside of the tarsal tunnel related to his left ankle. In a December 2008 medical treatment note, the Veteran described his pain as similar to somebody putting pressure on the heel. He stated that he felt like his arch was being stretched out and noted that it felt like someone was sticking it with a nail. He said that he had inserts that he had used for the past month. Upon examination, the examiner found the Veteran’s gait was normal when wearing shoes and abnormal without shoes. The examiner observed tenderness to palpation in the left plantar fascia and moderate discomfort in the left foot. In a February 2009 medical treatment note, the Veteran said he experienced pain in his arch, the medial portion, and the outside of his left foot. He felt like his arch was fatigued and tired but improving. He described constant pain with a severity of 3 out of 10. The clinician noted that he had pain at inversion, eversion, plantar flexion, and dorsiflexion. The clinician found that he had pain along the medial portion of the foot on the plantar surface and decreased sensitivity to light touch around the medial heel. The clinician observed that he had multiple gait deviations and did not load or evert his foot efficiently. Based on the above, a rating in excess of 10 percent for the Veteran’s left foot plantar fasciitis is not warranted. In this regard, the Veteran experienced pain in his left foot. However, while clinicians noted pain in his foot, including at inversion, eversion, plantar flexion, and dorsiflexion, they did not note a marked deformity in the use of his foot. Similarly, he described experiencing pain on use, but did not indicate accentuated pain on use, swelling upon use or characteristic callosities. Indeed, he noted that his pain diminished after walking. Accordingly, a rating in excess of 10 percent is not warranted and the appeal is denied. Rating Period from May 8, 2010 to September 26, 2010 In medical records between May 2010 and September 2010, the Veteran was diagnosed with an ankle sprain. While a clinician observed pain in his left talofibular ligament in June 2010, no tenderness over the anterior talofibular ligament and no ankle effusion were noted in July 2010. Based on the above, a compensable rating is not warranted for the Veteran’s left foot plantar fasciitis. While pain in the left ankle was observed, to the extent that it impacted his left foot it was temporary. As noted above, the July 2010 clinician ultimately found no tenderness over the anterior talofibular ligament and no ankle effusion. Furthermore, the clinician observed that he had excellent motion. Accordingly, a compensable rating is not warranted for the Veteran’s left foot plantar fasciitis for the period from May 8, 2010 and September 26, 2010. From December 9, 2011 to May 30, 2015 In a June 2013 medical treatment note, the Veteran reported experiencing pain in the lower bottom of his left foot. A subsequent January 2014 imaging report identified bilateral calcaneal spurs that were more prominent on his left foot. In a January 2014 VA examination, the Veteran noted that he was given inserts in 2009 and had been using them since that time. He said that he experienced pain in his left foot and rated its severity as a 3 to 4 out of 10. Upon examination, the Veteran was found to not have foot conditions including: Morton’s neuroma, metatarsalgia, hammer toe, hallux valgus, hallux rigidus, clawfoot, malunion or nonunion of the tarsal or metatarsal bones, foot injuries, or a bilateral weak foot. The examiner diagnosed plantar calcaneal spurs and plantar fasciitis in the left foot. Based on the above, a rating of 10 percent is warranted for the Veteran’s left foot plantar fasciitis. In this regard, veterans are competent to report symptoms such as pain on motion and that, where they have a noncompensable rating for a musculoskeletal disability and describe pain on motion, they are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Furthermore, the provisions of 38 C.F.R. § 4.59 are not limited to arthritis or diagnostic codes predicated on range of motion measurements and must be considered when raised by the claimant or reasonably raised by the record. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran noted experiencing pain in his left foot June 2013 and in his January 2014 VA examination. Accordingly, a 10 percent is warranted for this period. Since September 4, 2015 In a November 2015 medical treatment note, the clinician identified plantar calcifications that suggested probable plantar fasciitis of the left foot. In subsequent treatment notes, the Veteran reported pain in his left foot. In a January 2016 VA examination, the Veteran reported continuous dull pain in the heel and arch of his left foot. He reported no loss of range of motion or flare-ups. Upon examination, the examiner found that he did not have pain on manipulation of his feet, indications of swelling on use, or characteristic callouses; however, he had accentuated pain on use of his left foot. The examiner noted that there was not extreme tenderness of the plantar surface of one or both feet, and that he did not have decreased longitudinal arch height on weight bearing, objective evidence of marked deformity, marked pronation, inward bowing of the Achilles tendon, marked inward displacement and severe spasm of the Achilles tendon on manipulation, a lower extremity deformity other than pes planus causing alteration of the weight-bearing line, and a weight-bearing line that fell over or medial to his great toe. The examiner further found that he did not have other foot conditions including: Morton’s neuroma, metatarsalgia, hammer toe, hallux valgus, hallux rigidus, clawfoot, malunion or nonunion of the tarsal or metatarsal bones, foot injuries, or a bilateral weak foot. The examiner ultimately diagnosed plantar fasciitis, degenerative arthritis, left ankle and foot pain, and bilateral heel spurs, opining that his plantar fasciitis was at least as likely as not related to service. In a February 2017 VA examination, the examiner opined that the examination only revealed heel spurs and that the Veteran did not have a current diagnosis of plantar fasciitis. Based on the above, a rating of 10 percent, is warranted for the Veteran’s left foot plantar fasciitis. In this regard, as noted above, veterans are competent to report symptoms such as pain on motion and that, where they have a noncompensable rating for a musculoskeletal disability and describe pain on motion, they are entitled to at least the minimum compensable rating for the joint. In his January 2016 VA examination, the Veteran reported continuous dull pain in his left heel and arch of his left foot, and the examiner found that he had pain on use of the left foot. Accordingly, for the entire period on appeal, the medical evidence supports a rating of 10 percent and the appeal is granted to this extent. Nevertheless, a rating of 20 percent is not warranted. In this regard, while accentuated pain on use of the left foot was identified, the January 2016 VA examiner found that the Veteran did not have objective evidence of a marked deformity, indications of swelling on use, and characteristic callouses. Therefore, a rating in excess of 10 percent is not warranted. Consideration has also been given to assigning staged ratings with respect to the Veteran’s plantar fasciitis. However, at no time during the period in question has the disability in question warranted higher schedular ratings than those assigned. Hart v. Mansfeld, 21 Vet. App. 505 (2007). The Board has also considered the Veteran’s lay statements that his disability is worse. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses and the ratings currently assigned have considered his lay statements as to the level of disability. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability, where such disability includes: (a) an undiagnosed illness; (b) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms; or (c) any diagnosed illness that the Secretary determines in regulations warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2)(2012). Such disability must have manifested either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. The Board notes that an undiagnosed illness is one which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317(a)(1) (2017); 81 Fed. Reg. 71, 382-84 (Oct. 17, 2016). The term “Persian Gulf veteran” means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The “Southwest Asia Theater of operations” refers to Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The Persian Gulf War means the period beginning on August 2, 1990, and ending on the date thereafter prescribed by Presidential proclamation or by law. 38 C.F.R. § 3.2. A medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(1)(B)(ii). Signs and symptoms that may be manifestations or undiagnosed illness or a medically unexplained chronic multi-symptom illness include: fatigue, signs or symptoms involving skin, headaches, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). Under 38 C.F.R. § 3.317, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date upon which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. In the case of claims granted on a presumptive basis for Persian Gulf veterans under 38 U.S.C. § 1117, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TBI For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The record does not show that the Veteran has a confirmed diagnosis of a TBI. To that end, while September 2013 medical treatment notes indicate that testing was positive for a mild cognitive disorder, they did not diagnose a current TBI. Indeed, a clinician summarized that while the Veteran previously had a TBI, he did not demonstrate residual symptoms. Furthermore, in a June 2014 VA examination, the examiner opined that the Veteran was not diagnosed with TBI or residuals of a TBI, found that he did not have any significant impairment that would be expected to be the residual impairment of function resulting from supratentorial and cortical brain damage from a TBI. The examiner noted that the Veteran’s testing results on examination were at least in the average range and that he scored well on tests that measured complex levels of functioning and required abstraction. As noted above, service connection may only be granted for a current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). As there are no confirmed diagnoses related to a TBI at any time during the pendency of the appeal, service connection is not warranted and the appeal is denied. Respiratory Disorder As an initial matter, a respiratory disorder, to include a chronic cough, is not a chronic disease under 38 C.F.R. § 3.309(a); therefore, presumptive service connection is not for application. Similarly, the Veteran has not argued that his chronic cough was caused or aggravated by a service-connected disability; as such, secondary service connection will not be considered. However, the Veteran asserts that his respiratory disorder is the result of exposure to environmental hazards incurred while serving in Iraq and that his chronic cough constitutes a chronic undiagnosed illness under 38 C.F.R. § 3.317. Therefore, presumptive service connection on the basis of a chronic undiagnosed illness, service connection on the basis of exposure to environmental hazards, and direct service connection will be addressed. First, the Veteran has been diagnosed with a respiratory disorder. Specifically, a January 2016 medical treatment note diagnosed a nonproductive chronic cough. Therefore, the first element of service connection has been met. Further, in October 2014, he alleged that his respiratory disorder was the result of environmental hazards consistent with his service in Southwest Asia, to include burn pits. He said that as a result of this exposure, he developed respiratory symptoms to include a chronic cough. A review of the service treatment records (STRs) shows that the Veteran served in Iraq from August 2006 to August 2007 and from December 2010 to September 2011 during Operation Iraqi Freedom. Therefore, he served on active duty in the Southwest Asia Theater during the Persian Gulf War. Further review of the STRs reveals that the Veteran asserted in August 2007 and September 2011 post-deployment health assessment that his health worsened during deployment and that while deployed, he experienced a chronic cough, runny nose, weakness, headaches, muscle aches, numbness, tingling, and fatigue. Generally, a veteran is competent to report that which he perceives through the use of his senses, including events capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran’s statements are consistent and well-documented throughout the record. Additionally, as described above, his statements are corroborated by the additional evidence of record, such that competent and credible evidence of an in-service event has been found. However, the evidence of record does not support a finding that his current respiratory disorder resulted from his in-service respiratory symptoms. Specifically, in a January 2014 VA examination, the Veteran reported that his respiratory symptoms began while deployed over the summer of 2011 after having a serious chest cold. He explained that while his cold resolved, his cough remained. He said that while in Iraq, he was exposed for 20 months to burn pits and smoke from one mile away. The examiner found that a cough was not present during the examination, that the Veteran had no wheezing and rhonchi, and that his lungs were clear to auscultation and percussion. The examiner further noted that the Veteran was sent for pulmonary function tests and a respiratory disorder was not found, and that he did not require the use of oral or parenteral corticosteroid medications, inhaled medications, oral bronchodilators, antibiotics, or oxygen therapy. The examiner opined that the Veteran did not have a condition associated with exposure to in-service environmental hazards and that his chronic cough was less likely than not incurred in or caused by his claimed in-service injury. The examiner explained that a cough was not observed during the examination, that his X-rays were normal and that he was not taking medication for the condition. The examiner opined that his respiratory disorder was the product of a hiatal hernia with reflux, possible gastritis, and use of a hypertension medication known to cause respiratory symptoms. The examiner finally noted that there was no chronic disability pattern of unknown origin identified during the examination. In a September 2013 medical treatment note, the Veteran complained that he had a chronic cough for over a year. The clinician diagnosed a chronic cough that was possibly secondary to an ACE inhibitor. In a January 2015 medical treatment note, the Veteran reported a chronic cough that had persisted for almost 5 years. The clinician noted that the Veteran’s pulmonary function testing was normal, but that an upper gastrointestinal series revealed a hiatal hernia with free reflux. The clinician diagnosed a chronic cough and gastroesophageal reflux disease (GERD). In a February 2015 medical treatment note, a clinician reported that the chronic cough had not improved despite a change in medication. In subsequent January and April 2016 medical treatment notes, the clinician diagnosed a nonproductive chronic cough. The clinician noted that it was unresponsive to all treatment prescribed by the Veteran’s pulmonologist and was present since 2011. The clinician opined that lung pathology was not triggering the cough. However, the clinician did not opine as to the cough’s relationship to service. The Veteran has reported objective signs of a respiratory condition that manifested after his return from the Gulf War. However, the normal findings in the VA examination, normal pulmonary function testing noted in his subsequent post-service medical treatment notes, and nonproductive nature of his diagnosed condition mean that these manifestations have not been shown to a degree of 10 percent. The Board notes that the Veteran’s chronic cough has not been found to be the result of any diagnosed respiratory disorder or respiratory condition. Furthermore, as the VA examiner explained, the Veteran’s chronic cough was a product of a hiatal hernia and possible gastritis, which are not service connected and are known clinical conditions. Thus, his cough was found to be neither an undiagnosed illness nor a manifestation of a medically unexplained chronic multi-symptom illness. As there are no showings of an undiagnosed illness present to a degree of 10 percent and no established relationship between the Veteran’s respiratory disorder and in-service exposure to environmental hazards, the preponderance of the evidence is against the claims and there is no doubt to be otherwise resolved. Accordingly, service connection is not warranted and the appeal is denied. The Board has considered lay statements offered by the Veteran regarding the etiology of the disabilities on appeal. He is competent to report symptoms and describe his observations because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer opinions as to the etiology of his disabilities due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Such competent evidence has been provided by the medical personnel who have examined the Veteran during his current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to   address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Spigelman, Associate Counsel