Citation Nr: 19188597 Decision Date: 11/22/19 Archive Date: 11/22/19 DOCKET NO. 10-09 607 DATE: November 22, 2019 ORDER Entitlement to service connection for bilateral heel disorders, to include residuals of bilateral heel stress fractures, is granted. FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran’s bilateral heel disorder is related to her in-service injury. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral heel disorders, to include residuals of bilateral heel stress fractures, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2008 to September 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board’s latest remand of the claim was in May 2017 for further development of the record. Specifically, the Board directed the RO to retrieve copies of VA treatment records and any records from the Veteran, as well as schedule a new VA examination. The development was completed, and the case was returned to the Board for appellate consideration. In May 2018, the Board denied the Veteran’s bilateral heel disorders claim. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans’ Claims (CAVC). In July 2019, CAVC granted the Parties’ Joint Motion for Partial Remand (JMPR), vacating the May 2018 Board decision regarding denial of a bilateral heel condition, and remanded the Veteran’s appeal to the Board. The JMPR noted the Board failed to provide an adequate statement of reasons or bases for its finding that the Veteran was not entitled to service connection as the decision did not reconcile contradictory findings regarding the existence of a current heel disability and improperly rejected favorable evidence of pain and functional loss. CAVC directed that the Board reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this matter. A review of the Veteran’s claim file indicates that no additional evidence is necessary to reach a determination based on adequate reasons and bases. As such, the Board may proceed to the merits of the service connection claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). SERVICE CONNECTION Service connection can be granted for any current disability that is the result of a disease or injury incurred in or aggravated by active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disability diagnosed after discharge, where competent evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Alternatively, a claimant may obtain service connection by continuity of symptomatology. “Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307, (2007). Moreover, the reliance by a medical opinion upon a significant factual inaccuracy renders it devoid of any probative value, see Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993), and reliance on the absence of evidence in the Veteran’s service treatment records (STRs), contravenes applicable VA regulations and precedential case law allowing the award of direct service connection where supported by sufficient evidence. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); 38 C.F.R. § 3.303 (d). History conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles in relation to value consistent with accepted medical evidence relating to incurrence, symptoms and course of the injury or disease, including official and other records made prior to, during or subsequent to service, together with all other lay and medical evidence concerning the inception, development and manifestations of the particular condition will be taken into full account. 38 C.F.R. § 3.304(b)(2). It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and what this evidence shows, or fails to show, regarding the Veteran’s claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The record shows that the Veteran was afforded a VA examination in March 2009. During the examination, the Veteran reported that she started having pain in her right heel while in-service (noted date of onset August 2008); then, two weeks later her left heel started being painful. The examiner noted the Veteran stated her heel had sharp pain with tenderness and swelling; and that her pain radiates from her heel up her leg, especially on the right. After discharge, the Veteran rested, and most of the pain went away. However, when she started working as a fork lift operator in October 2008, she was only able to work three weeks because the pain kept her from performing her job duties. The examiner noted that the Veteran has had flare-ups of pain that she went to the ER at SMC, resulting in her being prescribed percocet for pain. It was noted that the Veteran is currently receiving treatment with poor response (prescribed Tylenol as needed), and that the Veteran’s pain is not relieved by resting or elevating her feet, yet she gets some partial relief in applying heat. The examiner specifically noted symptoms experienced by the Veteran in both feet (while standing or walking) as “pain, swelling, heat (e.g. burning sensation, radiating heat), stiffness, and lack of endurance.” The location of her foot symptoms (right and left) was described as pain in the plantar heel and sides of heel; heat sensation in the plantar heel; with swelling, stiffness and lack of endurance in the entire foot. It was noted that the Veteran has a frequency of flare-ups weekly or more often, that last less than a day. It was documented that the Veteran’s flares of pain are dependent on the Veteran’s activity, and that she experiences some pain even at rest. The examiner detailed functional limitations including an inability to stand for more than a few minutes, and an ability to walk ¼ of a mile but less than 1 mile. There was objective evidence of tenderness in the plantar heel and abnormal weight bearing based on unusual shoe wear patterns. The examiner diagnosed the Veteran with bilateral heel pain associated with bilateral heel stress fractures. The Veteran’s pain affects her daily and occupational activities which include: (1) mild effect on shopping; (2) moderate effects on chores, recreation and traveling; and (3) prevents exercise or sports. The examiner commented that pain was the major factor contributing to the Veteran’s inability to perform physical employment, but that there was no limitation to sedentary employment. Nonetheless, the examiner did not provide a medical opinion and rationale. The evidence shows that the Veteran was diagnosed with a current disability within the period of appeal. The March 2009 VA examination shows a diagnosis of bilateral heel pain associated with bilateral heel stress fractures. Therefore, the element of current disability is met. See Saunders v. Wilkie, 886 F.3d 1356, 1358 (2018) (finding that “Pain, even absent a specific diagnosis or otherwise identified disease or injury, can constitute a disability that can be found service-connected if it caused functional impairment”). The Veteran was on active duty for training when she incurred her bilateral heel injury. See Military Personnel Record at p.6, received August 17, 2012 (“Statement of Medical Examination and Duty Status”). Evidence of record shows an in-service bone scan, in September 2008, revealed that the Veteran had “small focal lesions at both mid upper calcanei” which the radiologist noted as “consistent with minor stress fractures.” See Medical Treatment Record - Government Facility, received October 9, 2012. Although the Statement of Medical Examination and Duty Status only mentions the Veteran’s knee stress fractures, lay evidence of record clearly resolves the discrepancy. In a Statement in Support of Claim received December 30, 2008, the Veteran detailed that her injury was incurred (during a team building exercise) when a fellow soldier dropped a sandbag on her knee in August 2008. The Veteran indicated that she went to sick call about a week after the precipitating event of injury with complaints about her heels (among other joints and/or lower extremities). She stated that was later diagnosed with stress fractures via the September 2008 bone scan. The Board finds the Veteran’s lay statement to be consistent and credible and affords the statement significant probative value. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (providing that “In determining whether lay evidence is satisfactory the Board may properly consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the veteran”). Therefore, the element of in-service incurrence is met. Lastly, there must be a showing of nexus between the current disability and in-service incurrence. In this case, there is medical and lay evidence of record that provides supporting data and assertions to establish nexus. The March 2009 VA examination contains data regarding symptoms and daily or occupational effects (functional limitations) of the Veteran’s current disability. Along with that, the March 2009 x-ray report associated with the VA examination shows that the Veteran’s right heel presents with small plantar calcaneal enthesophyte. (See VA Examination, received February 2009.) The March 2009 examination report specifically indicates that the Veteran has bilateral heel pain associated with bilateral heel stress fractures. During the examination, the Veteran provided lay statements describing the type of pain and symptoms she experienced when she was initially injured in service, as well as those which she was experiencing at the time of the examination. Though not present or seen in the March 2009 x-rays, the associated stress fractures occurred and/or were diagnosed only six months prior to the examination via the September 2008 bone scan. As stated above, the in-service bone scan records indicated there were focal lesions on both of the Veteran’s heels (mid upper calcanei), consistent with stress fractures. In reference to the Veteran’s stress fracture injuries, the Statement of Medical Examination and Duty Status in the Veteran’s personnel file indicates that the disability following such an injury may result in “permanent partial”, and the document cites the injury “as per medical documentation.” This is an indication that the resulting disability may continually affect the Veteran. Viewing this, it would be safe to say that the diagnosis assigned by the March 2009 VA examination is one that represents and/or should be recategorized as “residuals of bilateral heel stress fractures.” A June 2017 VA examination shows that the Veteran does not have any conditions or disorders of the “heel” (acknowledging a non-service-related great toe amputation). Though this may have been true at the time of said examination, the record reflects that such was not the case at the time of the Veteran’s filing of the claim or the March 2009 VA examination. The June 2017 examination and opinion may carry some significance in the evaluation for rating the disability (e.g. staged rating), but that is not the issue before the Board at this juncture. Thereby, the Board affords the June 2017 VA examination no probative value regarding the issue of service connection. The evidence of record is in equipoise as to whether there is a nexus between the Veteran’s current diagnosis and in-service injury. Though usually detrimental to reaching a decision on the merits, the March 2009 VA examiner’s failure to include a medical opinion and rationale in the examination report has proven to be of little issue in this matter. The record contains other evidence which (when put together with the March 2009 examination) leans positively towards showing the Veteran’s continuous symptoms within the first year after separation from service, satisfying the nexus element. Thus, resolving all reasonable doubt in favor of the Veteran, service connection for bilateral heel condition, to include residuals of bilateral heel stress fractures, is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B.C. Davenport The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.