Citation Nr: 20021292 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-39 857 DATE: March 25, 2020 ORDER New and material evidence has been received, the claim for service connection for right foot disorder is reopened. Entitlement to service connection for right foot disorder is granted. FINDING OF FACT 1. In a May 2010 rating decision, the RO denied service connection for the claim then characterized as bilateral heel spurs (also claimed as right heel pain, right swollen heel, bilateral heel pain, and bilateral foot cramps with muscle spasm); the Veteran did not perfect an appeal within one year of the rating decision and the decision became final. 2. Evidence submitted since May 2010, when considered by itself or in association with evidence previously provided, does relate to an unestablished fact and raises a reasonable possibility of substantiating the claim for service connection for right foot disorder. 3. The competent, credible, and probative lay and medical evidence is at least in relative equipoise to support that the right foot disorder was manifest in service with symptoms of heel pain and swelling. CONCLUSIONS OF LAW 1. The May 2010 rating decision that denied service connection for bilateral heel spurs (also claimed as right heel pain, right swollen heel, bilateral foot cramps with muscle spasm) is final. 38 U.S.C. § 7105(b), (c) (2012); 38 C.F.R. § 3.160 (d), 3.156(a) (2019). 2. New and material evidence has been received, and the claim for service connection for bilateral heel spurs (also claimed as right heel pain, right swollen heel, bilateral foot cramps with muscle spasm) is reopened. 38 U.S.C. § 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2019). 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for right foot disorder have been met. 38 U.S.C. § 1101, 5107 (2012); 38 C.F.R. § 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1986 to September 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In February 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the Veteran’s claims file. After review of the evidence of record, the Board observes that the characterization of the Veteran’s right foot disorder was first characterized symptomatically and over the years the symptoms eventually pointed to a diagnosis. Accordingly, the Board has recharacterized the issue on appeal in order to most inclusively address the Veteran’s foot symptoms and the benefits sought. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). 1. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, a claim based on the same factual basis may not be considered. 38 U.S.C. § 7104(b). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 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 of when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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 claims sought to be reopened and must raise a reasonable possibility of substantiating the claims. 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). Further, 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, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be credible for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); 3 Vet. App. 510, 513 (1992). In the May 2010 rating decision—which denied service connection for bilateral heel spurs (also claimed as right heel pain, right swollen hell, bilateral foot cramps with muscle spasm)—the RO considered evidence including service treatment records (STRs) one private treatment record, and a smattering of VA treatment records. The RO wrote that the evidence of record failed to show a current diagnosed disability and that in-service symptoms were isolated as opposed to chronic. In summary, the evidence failed to show a current diagnosis of right foot disorder (at the time heel spurs) that is linked to the Veteran’s in-service foot complaints. Since the May 2010 rating decision, the VA has received a parcel of additional VA treatment records, lay statements from two siblings of the Veteran, two additional private treatment records, the Veteran’s hearing testimony, and copies of peer0reviewed literature on plantar fasciitis, the current diagnosis assigned to the Veteran’s right foot disorder. Considering the minimal evidentiary threshold standards (under Shade), this body of competent medical and credible lay evidence is material to previously unestablished facts –possible in-service predicates for this disability, chronicity, and current right foot disorder. Therefore, the evidence is new and material and the Veteran’s claim for entitlement to service connection for right foot disorder is reopened. 2. Entitlement to service connection for right foot disorder. The Veteran contends that she developed a disorder of her right foot as a result of her in-service activities. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Board may consider many factors when assessing the credibility and weight of lay evidence, including statements made during treatment, self-interest or bias, internal consistency, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd, 78 F. 3d 604 (Fed. Cir. 1996). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). In each case where a Veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the Veteran's service record, the official history of each organization in which the Veteran served, the Veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Generally, to establish a right to compensation for a present disability, a veteran 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Analysis A review of the Veteran’s STRs reveal that she was seen in September 1986 complaining of a week of right heel pain without relief from medication. Upon examination, the heel was “exquisitely tender” in the plantar aspect as was the Achilles tendon. The Veteran was given a profile for three days and asked to return. Three days later the Veteran returned to the clinic stating that “Heels are doing worse.” She was given another three-day profile. In July 1989, the Veteran’s STRs document that she waived her separation examination. In April 2016, the Veteran’s brother and sister each submitted lay statements indicating that they were raised in the same household with the Veteran and she never had any health problems prior to service. The sister remembered the Veteran walking seven hours a day round-trip from their home to their high school in the summer of 1984 for driver’s education classes without any problems with her feet. A review of VA treatment records indicates that the Veteran has been treated on numerous occasions since 2010 with cortisone injections for heel pain associated with her plantar fasciitis. In December 2014 the Veteran had a steroid shot to her right heel. In June 2015, the Veteran was treated for moderately severe foot pain of several month’s duration due to plantar fasciitis. Private treatment records indicate that the Veteran’s podiatrist identified her active problem as plantar fasciitis and include June 2015 discharge instructions from a private hospital that state, in pertinent part, “Your exam shows that your heel pain is probably due to an inflammation of the heel pad called plantar fasciitis. The heel pad tissues attached to the heel bone (calcaneus) can become irritated from overuse . . . People with flat feet are likely to have heel pain problems. X-rays are usually normal, although there may be a heel spur present in some cases.” At the Board hearing, the Veteran testified that the heel pain, tingling and swelling that she experienced which began on her second day in bootcamp and has continued throughout service through the present time. She was obliged to wear sneakers instead of Army-issued boots throughout bootcamp, as her heels became painful and swollen when she put on her boots. While in-service, she worked for 9 years in food service which required that she stand the entire day. She used inserts in all of her shoes to avoid excruciating pain. She began receiving steroid shots in her heel which allowed the pain to subside a bit. After being a civilian night baker for the military for many years, she returned to school to train as a medical secretary because she could not withstand the amount of standing required in her work as a cook and baker. Despite the occupational change, her right foot still bothers her. See February 2020 Hearing Transcript, passim. The Board assigns considerable probative weight to the Veteran’s testimony given that the Veteran’s contentions are internally consistent and facially plausible. See Caluza, supra. Moreover, the siblings lay accounts of which they are competent to report, are consistent with the Veteran’s account. See id., see also Jandreau, supra. The Board acknowledges that there are significant gaps in the medical evidence of record as to the on-going nature of the right foot disorder. Nevertheless, as reflected above, the Board assigns considerable probative weight to the competent, consistent and credible lay evidence provided by both the Veteran and her two siblings. Therefore, the Board finds that the evidence of record as to onset in active duty service and continuity thereafter is in relative equipoise. Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that it is at least as likely as not that the Veteran is entitled to service connection for right foot disorder. See 38 U.S.C. § 5107(b); Gilbert, supra. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Denise Adams Hill, Associate Counsel 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.