Citation Nr: 21003237 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-29 699 DATE: January 21, 2021 ORDER Service connection for a left foot condition is denied. Service connection for a left ankle tendon strain condition is denied. Service connection for a right ankle tendon strain condition is denied. FINDING OF FACT The Veteran’s current left foot condition, left ankle tendon strain and right ankle tendon strain were not incurred during or as a result of any incident of service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a left foot condition have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). 2. The criteria to establish service connection for a left ankle tendon strain have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). 3. The criteria to establish service connection for a right ankle tendon strain have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service from July 2000 to October 2006. The case was remanded in October 2017 for evidentiary development and for new medical examinations and opinions. All actions ordered by the remand have been accomplished. In an August 2018 rating decision, the regional office (RO) granted the Veteran’s claims of service connection for posttraumatic stress disorder (PTSD) and a right elbow condition. The issue of service connection for these disabilities are no longer in appeal status. The Board has recharacterized the issue of entitlement to service connection for left heel spurs to more broadly encompass entitlement to service connection for a left foot condition. The law provides that VA must broadly consider claims and when a Veteran asserts service connection, he does so for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a left foot condition and bilateral ankle tendon strains The Veteran contends he demonstrated the onset of his current left foot and bilateral ankle tendon strain conditions during service. Given the Veteran’s general contention that all three conditions are related to each other, the Board will analyze the Veteran’s three claims together. The Veteran’s December 1999 report of medical history at enlistment indicates he denied foot trouble; lameness; arthritis, rheumatism, or bursitis; bone, and joint or other deformity. His clinical musculoskeletal evaluation was normal. On an October 2001 risk assessment questionnaire, the Veteran denied lower leg swelling and any bone, joint or muscle problems. Service treatment records (STRs) indicate that in September 2004 the Veteran complained of left Achilles’ tendon pain for the prior 10 days. On examination the Veteran stated that wrapping the ankle and taking over-the-counter pain relief medication was the only treatment he needed. On his December 2004 report of medical history for retention, the Veteran denied foot trouble; impaired use of arms, legs, hands or feet; swollen or painful joints; any need for corrective devices such as orthotics; and any bone, joint or other deformity. His clinical musculoskeletal evaluation was normal. On the August 2006 report of medical history prior to separation, the Veteran denied foot trouble; impaired use of arms, legs, hands or feet; swollen or painful joints; any need for corrective devices such as orthotics; and no bone, joint or other deformity. On his August 2006 report of medical assessment prior to separation, the Veteran did not complain of any foot or ankle conditions incurred during service. His only complaints were of a right shoulder condition and obstructive sleep apnea, both of which have since been service-connected. In September 2006, one month prior to separation, the Veteran complained of right lower leg calf pain when running. On examination, the examiner noted the Veteran’s bilateral ankles showed no abnormalities and demonstrated normal range of motion. The Veteran’s right calf demonstrated normal strength and a normal Thompson’s squeeze test result, indicating no tendon pathology. Finally, the Veteran’s bilateral feet showed no abnormalities. A neurological motor examination demonstrated no dysfunction. The Veteran was assessed with a right gastrocnemius strain. The examiner advised the Veteran to take pain relief and to perform stretching exercises. There are no other complaints, diagnoses, or treatments for a bilateral lower extremity condition during service. Personnel records indicate the Veteran was administratively separated due to a failure to maintain adequate physical fitness standards in particular, it was noted that the Veteran was being separated because of “failure to meet body composition standards.” In June 2008, the Veteran complained of chronic left heel pain for the past “several” weeks with worsening severity. Subsequent June 2008 private imaging revealed evidence of a left heel spur deformity. At a January 2009 physical therapy consultation, the Veteran reported the onset of left heel pain in June 2008 with exacerbations in October 2008 and November 2008. The Veteran described the pain as “some days are better than others,” that the condition affected his abilities to run and maintain long periods of prolonged standing required by his position in law enforcement. He also reported he did not wear orthotics, and that his chief pain complaint was with weight bearing along the lateral border of the heel. The examination revealed a normal gait, slightly reduced range of motion (ROM) of the left ankle, normal right ankle strength and slightly reduced left ankle strength, minimal gastroc and soleus tightness bilaterally, and no pain or tenderness on palpation of the left medial and lateral heel borders. The examiner diagnosed the Veteran with plantar fasciitis and recommended the Veteran engage in physical therapy to increase his left ankle ROM and to tolerate physical activities without complaints. In a statement received February 2009 from one of the Veteran’s fellow service members, T.E. stated he witnessed the Veteran experience several injuries to his foot. These lay statements are competent regarding their observations of the Veteran’s physical condition during service generally, and to establish the presence of observable symptomatology, including frequency. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Barr v. Nicholson, 21 Vet. App. 303, 307-8 (2007). While also presumed credible, these observations are not competent to diagnose the Veteran with a lower extremity disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In June 2009 the Veteran underwent endoscopic surgery to cut and release the left heel plantar fascia and showed initial improvement in his heel pain after surgery. Starting in August 2009 the Veteran continued to complain of left foot pain. In September 2009 his private physician diagnosed him with pes cavus due to pain complaints in the left foot arch. In March 2010 the Veteran complained of recurrent left lateral foot pain. The Veteran’s treating physician reviewed the Veteran’s service record and noted the Veteran had a history of lower extremity issues during service, including a biomechanical issue on the left lower leg and foot. The examiner noted x-rays indicated pes planus, that the Veteran did not demonstrate heel pain, and that the Veteran demonstrated tenderness at the left sinus tarsi area. The physician diagnosed the Veteran with sinus tarsi syndrome. In early May 2010 the Veteran complained of recurrent pain at the peroneal tendons. A subsequent May 2020 MRI of the left ankle revealed a thickened anterior-talofibular ligament, normal sinus tarsi, an intact medial band of plantar fascia, and no abnormal soft tissue fluid collection. The examiner’s impression indicated no evidence of peroneal tendon pathology and that the thickening of the anterior-talofibular ligament suggested a chronic injury. In July 2010 the Veteran’s treating physician stated the Veteran demonstrated evidence of an old injury to his left ankle ligaments that was confirmed in the May 2010 MRI. He opined that the Veteran’s current left ankle condition related back to injuries he sustained during active service. This opinion is conclusory and provides insufficient analysis to consider and weigh his opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007) (holding that “a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor’s opinion”). The examiner did not provide a fact-based explanation for his conclusion linking the Veteran’s left ankle condition to his service. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). At the February 2011 VA medical examination, the Veteran reported the onset of left leg and ankle tendon pain during his last days of military service. He reported current symptoms of weakness, swelling, lack of endurance, fatigability, pain, stiffness, with flareups after physical activity, or prolonged walking or standing. The examiner diagnosed the Veteran with status post left ankle heel spur surgery and left ankle tendon strain. X-rays indicated a normal tibia, fibula, and left ankle, with no evidence of malunion of the os calcis or astragalus. The examiner opined it was less likely than not that the Veteran’s current anterior talofibular ligament condition was related to the Veteran’s in-service Achilles tendon pain complaints because there was no separation examination available for review, there was a lack of continuous treatment for an Achilles tendon condition from 2004 to the recent diagnosis in 2009, there was no documentation of any treatment for a tendon injury from 2006 to 2008, and the Veteran’s medical history indicated he reported the injury occurred both in 2006 while running prior to separation and also in 2007 after service. The examiner did not diagnose the Veteran with a right ankle condition. In a November 2011 orthotics consultation, the Veteran reported bilateral heel and left ankle pain. He reported a previous left ankle injury and that he “rolled” his ankle often during service. He also reported no improvement in his left heel after his surgery and subsequent multiple steroid injections, and that he occasionally wore an ankle brace. He further reported the onset of right heel pain for the past one year and that he believed it was due to overcompensating for his left foot. On examination the Veteran demonstrated tenderness at the right medial heel, normal strength, no swelling, and a negative anterior drawer’s test result bilaterally. X-rays of the left foot revealed no significant bone or joint abnormality, no fracture, and no significant degenerative changes. The examiner assessed the Veteran with bilateral plantar fasciitis and a depressed left foot arch. The examiner injected the Veteran’s right heel with a steroid injection. In a June 2012 addendum, the Veteran’s physician noted that the November 2011 x-rays did not indicate evidence of heel spurs. In December 2012 the Veteran complained of left ankle pain and right foot plantar fasciitis pain. On examination the Veteran’s left ankle demonstrated mild pain with compression. The examiner ordered an MRI to evaluate a possible lateral ankle tear. A February 2013 MRI revealed intact anterior and posterior inferior tibiofibular ligaments, peroneal tendons, and Achilles tendon. The examiner’s impression indicated no evidence of ligamentous disruption and no acute abnormality. In April 2013 the Veteran complained of bilateral heel and left ankle pain. He repeated his previous report of an in-service injury, the lack of improvement after left heel surgery, and the onset of right heel pain due to overcompensation. On examination the Veteran demonstrated mild swelling in the left ankle and tenderness at the left heel. The examiner noted the February 2013 MRI results, assessed the Veteran with plantar fasciitis, and injected the Veteran’s left ankle with a steroid injection. At a November 2013 physical therapy evaluation, the Veteran reported a history of left ankle and foot problems since service. The examiner noted the Veteran demonstrated a wide-based mild antalgic gait pattern that favored his lower left extremity, truncal obesity with stooped sitting and standing posture, and fallen arches bilaterally. On examination the Veteran demonstrated severe tenderness along the right medial heel area, swelling along the right and left heels, with no swelling along the left ankle, and a positive response to gastroc tightness testing, with right more severe than left. The examiner advised icing and elevation to reduce swelling, several stretches for the plantar fascia and calf tendons, and Iontophoresis (electric stimulation therapy) for both heels, which the Veteran underwent. At the June 2016 Board hearing, the Veteran testified that due to a high body-fat percentage, he was ordered to perform extra mandatory physical training to lose weight. He explained that he often twisted and rolled his ankle during service, and that when he reported to sick bay for medical attention of foot or ankle complaints he was often denied any medical attention or treatment. He reported a history of icing his ankle or foot and wrapping it in a bandage as a form of self-treatment that started in service and continued to the present. July 2016 VA treatment records indicate the Veteran complained of severe left ankle pain. On examination the Veteran demonstrated a flat arch in his left foot, tenderness on the top of his left ankle, and pain during dorsiflexion ROM testing. The examiner assessed the Veteran with severe left foot and ankle pain, ankle instability, and tenderness. Later in July 2016 the Veteran was fitted for an ankle brace. At an October 2016 orthopedic surgery consultation, the Veteran reported left medial ankle pain for the past 7 years with prior plantar fascia release surgery and a history of repeated episodes of “rolling” the left ankle. The examiner noted Veteran’s right ankle did not demonstrate gross swelling or a deformity, any gait abnormalities, that the Veteran stood in a neutral hindfoot posture, that he demonstrated tenderness to the plantar fascia without laxity, and had a negative anterior drawer’s test response. A right foot MRI revealed that his medial and lateral ankle ligaments, peroneal tendons, and posterior tibial tendons were all intact with no significant edema, inflammation or other significant abnormalities. The examiner advised the Veteran to wear right foot orthotics due to a flat foot, to continue wearing an ankle brace, and to continue taking anti-inflammation medication. Given the examiner’s notation that the Veteran’s complaints were for his left foot and then the results were for his right foot, these notes are not probative of a current diagnosis of right foot pes planus. November 2017 private treatment records indicate the Veteran’s treating physician diagnosed the Veteran with left ankle instability and a collapse left medial arch with ligament and tendon failure. The examiner’s notation included an opinion that the Veteran’s left ankle and foot condition was more likely than not related to the in-service injury to his ankle and foot sustained during service. As noted above, this opinion is conclusory and provides insufficient analysis to consider and weigh his opinion. See Stefl v. Nicholson, supra. The examiner did not provide a fact-based explanation for his conclusion linking the Veteran’s left ankle and foot condition to his service. See Reonal v. Brown, supra. At the November 2017 VA medical examination for ankle conditions, the examiner noted the 2004 diagnosis of left ankle tendonitis during service. The Veteran reported bilateral arch pain and pain at the top of his foot with prolonged weight bearing. The examiner noted that after separation the Veteran had employment which required prolonged standing, to include bartending, as a prison guard, a police officer, working in a warehouse, and his current job for an airline. In addition she noted that the Veteran was currently morbidly obese and that he had gained significant weight since separating. At the November 2017 VA medical examination for foot conditions, the same examiner noted the 2012 diagnosis of left foot pes planus (flat foot) and bilateral plantar fasciitis. She also noted the Veteran’s June 2009 endoscopic surgery and that the Veteran had developed bilateral plantar fasciitis in 2012. The Veteran reported bilateral arch pain and pain on top of his foot with weight bearing. The examiner opined the Veteran’s left heel spurs were not incurred in service because they were not discovered in service but rather several years later. She also opined the Veteran’s left ankle tendon strain was not incurred in service because the Veteran’s in-service left Achilles tendon complaint occurred in 2004 and there were no further documentations of tendon complaints prior to 2008. She further opined the Veteran did not have a current right ankle tendon strain condition per the examination. The examiner explained that the Veteran’s initial diagnosis of left heel spurs were “minute” and were minimally noticeable on the MRI. She further noted that later imaging did not indicate continued left heel spurs. She then explained that the Veteran’s current left ankle tendon strain was less likely aggravated by his heel spurs because the heel spurs were so minimal in nature and that it was more likely than not that the left ankle strain had developed after service due to his increasing morbid obesity and occupational hazards that required prolonged standing. She also explained that the Veteran’s current symptoms were more likely related to his plantar fasciitis which he also developed after service rather than his left ankle tendon strain. In May 2018 a private medical examiner conducted a physical evaluation and reviewed the Veteran’s claims file records. The examiner diagnosed the Veteran with bilateral plantar fasciitis, left foot traumatic arthritis and heel spur, instability in the medial and lateral ligaments in the left foot, and ligament strain and medial ligament laxity in the right foot. The examination revealed right ankle tenderness over the plantar fascia and calcaneus insertion, tender medial tendons, with decreased right ankle ROM. The examination further revealed left foot surgical scar, a flattened arch with tenderness over the arch and the calcaneus, decreased ROM of the left big toe, hypertrophy of the medial ligaments consistent with frequent strains, good ROM with unremarkable left ankle ligaments. The examiner also noted a mildly antalgic gait due to the arch and calcaneus of the left foot and that he wore orthotics in both shoes. The examiner opined it was more likely than not that wearing combat boots and standing on the hard surfaces of the Veteran’s naval vessels caused him to strain the arches of both feet with more significant strain on the left foot. This strain caused the Veteran’s left foot plantar fascia to become inflamed and to develop tendonitis, which then caused a bone spur in his left foot. He also opined it was more likely than not that the Veteran’s left foot plantar fasciitis and arch instability caused instability in his medial and lateral ligaments. Although the Veteran’s left ankle ligaments healed after the strains, the repeated strains caused permanent damage to the medial tendons which he confirmed through his physical examination, noting the left ankle tendons were thicker than the right ankle tendons. The private examiner further opined that it was more likely than not that the Veteran’s service conditions caused tendonitis in his right foot arch as well. Furthermore, he opined the Veteran’s left ankle instability put abnormal stress on the inner ligaments of the Veteran’s right ankle that resulted in stretching and laxity of his right ankle medial ligaments. This opinion is conclusory and does not provide sufficient analysis to consider and weigh his opinion. The examiner’s does not account for the Veteran’s post-service occupational history that required prolonged standing nor the Veteran’s significant history of obesity during and since service in his opinions on causation. See Stefl v. Nicholson, supra. In a February 2019 addendum opinion, the same November 2017 VA examiner reviewed the private May 2018 examination report and opinion. She opined that the private examiner did not review the Veteran’s STRs because the STRs were “clearly silent” for any feet or ankle conditions. She noted that had the Veteran demonstrated continued feet or ankle conditions during service the STRs would indicate medical treatment or a physical profile change to address the conditions. She therefore reiterated her opinions that the Veteran’s ankle and feet conditions were not incurred during service. In an April 2019 supplemental opinion, the May 2018 private examiner stated he had reviewed the February 2019 VA examiner’s opinion and an additional 145 pages of the Veteran’s service records. The examiner noted that his opinions remained the same as set forth in his May 2018 report. The claims for service connection for a left foot condition and bilateral ankle tendon strain conditions are denied. The preponderance of the probative evidence (i.e., that which is competent, factually informed and relevant) is against a finding that the Veteran’s current left foot condition, left ankle tendon strain, or right ankle tendon strain were incurred during service. The Veteran has continuously asserted throughout the appeal that his current left foot and bilateral ankle conditions are a result of his service, to include mandatory physical training to lose weight. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, and those of other lay individuals, the Veteran is not competent to offer opinions as to the etiology of his current lower extremity conditions. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Plantar fasciitis, heel spurs, and tendon strains require specialized training for determinations as to diagnosis and causation, and are therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such nexus opinions or attempt to present lay assertions to establish a nexus between his current diagnoses and their relationship to his service. (Continued on the next page)   The November 2017 VA examiner’s opinions are highly probative. The examiner reviewed the record for any fact-based objective evidence of symptoms related to foot and ankle conditions during and after service, and considered the Veteran’s lay statements regarding the onset and frequency of symptoms, the circumstances of the Veteran’s service, and the Veteran’s post-service occupational risk factors. Since the Veteran’s left foot condition, left ankle tendon strain, and right ankle tendon strain were not incurred in service, the claims for service connection are denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.