Citation Nr: 21064482 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 18-14 160 DATE: October 20, 2021 ORDER Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for plantar fasciitis, left foot, is denied. REMANDED Entitlement to service connection for lumbosacral strain (claimed as lower back problems) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a right foot disability at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that plantar fasciitis, left foot, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for plantar fasciitis, left foot, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1972 to April 1974. These matters came to the Board of Veterans' Appeals (Board) from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran filed a notice of disagreement with regard to the denial of service connection for lumbosacral strain. In February 2018, a statement of the case was issued which included all 3 issues. A substantive appeal was received in March 2018. The Veteran testified at a Board hearing in December 2020; the transcript is of record. Service Connection The Veteran asserts that he has disabilities of the feet due to service. The Veteran testified that during a training exercise on an obstacle course he landed on the ground on his feet and his knees gave out and he jammed his back. 12/10/2020 Hearing Transcript at 3, 11. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has current disabilities of the right and left foot that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis pertaining to the right foot and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In August 2017, the Veteran underwent a C&P examination wherein there was no diagnosis rendered with regard to the right foot. The Veteran reported pain on use of the right foot but otherwise there were no objective findings pertaining to the right foot. VA and private treatment records do not reflect any complaints or diagnosis pertaining to the right foot. The Board is cognizant of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the United States Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. However, the evidence of record does not reflect any functional impairment as a result of any right foot disability pain. With regard to the left foot, while the Veteran has a current diagnosis of plantar fasciitis, the preponderance of the evidence weighs against finding that the Veteran's plantar fasciitis began during service or is otherwise related to an in-service injury, event, or disease. A September 1971 Report of Medical History reflects that the Veteran described his present health as "poor" and checked the 'No' box for 'foot trouble.' The examiner's comments are illegible. Id. at 33-34. A September 1971 Report of Medical Examination reflects that his 'feet' were clinically evaluated as normal. Id. at 29. Service treatment records reflect that in May 1972 the Veteran complained of pain in the left foot Achilles tendon. The assessment was Achilles tendinitis. 04/23/2013 STR-Medical at 9. An April 1974 Report of Medical Examination reflects that his 'feet' were clinically evaluated as normal. Id. at 31. An April 1974 Report of Medical History reflects that he checked the 'Yes' box for 'foot trouble' but the examiner indicated that there was no history of serious illness or injury. Id. at 35-36. VA and private treatment records do not reflect any complaints or diagnosis pertaining to the left foot. An August 2017 C&P examination reflects a diagnosis of plantar fasciitis, left foot. The examiner acknowledged the May 1972 diagnosis of Achilles tendinitis. The examiner opined that his plantar fasciitis is less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner stated that there was one entry for foot pain in the military medical record and that was for Achilles tendinitis, an independent condition from what he was diagnosed on today's exam. The examiner stated there was no ongoing chronic condition. This is in addition to the fact that there is an over 40-year interval between his separation and current examination, which makes it less likely that his military career contributed to this condition. Thus, while the Veteran had Achilles tendinitis in service, such has not been diagnosed post-service and the evidence of record does not support a finding that his currently diagnosed plantar fasciitis is due to service. In light of the Veteran's lay assertions pertaining to the feet, the Veteran was afforded an examination and a negative opinion was proffered. The August 2017 examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran's belief that he has disabilities of the feet due to service. The Veteran, however, is not competent to provide a diagnosis with regard to the right foot and is not competent to provide a nexus opinion with regard to the left foot. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/anatomical relationships/pathology/interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the opinion of the August 2017 trained medical professional is the only probative evidence on the question of nexus. No refuting opinion has been submitted. Accordingly, the claims are denied. REASONS FOR REMAND The Veteran asserts that he has a disability of the lumbar spine due to service. The Veteran testified that during a training exercise on an obstacle course he landed on the ground on his feet and his knees gave out and he jammed his back. He did not undergo medical attention, but he was given light duty. 12/10/2020 Hearing Transcript at 3-4. A September 1971 Report of Medical Examination conducted for pre-induction purposes reflects that his 'spine, other musculoskeletal' was clinically evaluated as normal. 04/23/2013 STR-Medical at 29. A September 1971 Report of Medical History reflects that the Veteran described his present health as "poor" and checked the 'Yes' box for 'recurrent back pain.' The examiner's comments are illegible. Id. at 33-34. A March 1973 service treatment record reflects complaints of back problems. The impression was mild back pain. Id. at 6. An April 1974 Report of Medical Examination conducted for separation purposes reflects that his 'spine, other musculoskeletal' was clinically evaluated as normal. Id. at 31. An August 1974 Report of Medical History reflects that the Veteran described his present health as "poor" and "overweight." He checked the 'Yes' box for 'recurrent back pain.' The examiner commented that he had no history of serious illness or injury. Id. at 35-36. An August 2017 C&P examination reflects a diagnosis of lumbosacral strain. The examiner opined that the condition was less likely than not due to service. The examiner stated that there were only two entries for "mild low back pain" in the military medical records and he complained of recurrent low back at enlistment physical exam. The examiner stated that it was not a chronic ongoing condition. This, in addition to the fact that there is an over 40-year interval between separation and current examination, makes it less likely than that that his military career contributed to this condition. An April 2018 statement from Dr. R.E.J, D.O., reflects that he began seeing the Veteran in October 2017 for chronic low back pain. Dr. R.E.J. opined that the current condition is at least as likely as not caused by injury, event in service. 05/03/2018 VA 21-0820 Report of General Information. The December 2017 treatment record from Dr. R.E.J. is of record, but the October 2017 treatment record has not been associated with the claims folder. After obtaining an appropriate release from the Veteran, the outstanding and updated treatment records should be obtained. There are also treatment records from Dr. N.S., M.D., dated in December 2017 and January 2018. The Veteran testified that he underwent back surgery in January 2018. After obtaining an appropriate release from the Veteran, updated treatment records should be obtained from Dr. N.S. At the time of the August 2017 C&P examination, the Veteran's lay assertions as to his in-service injury were not of record. In light of the Veteran's lay assertions and the opinion of Dr. R.E.J., an addendum opinion should be sought regarding the etiology of the Veteran's lumbar spine disability. The matter is REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. R.E.J. and Dr. N.S. Make two requests for the authorized records from: a) Dr. R.E.J. for October 2017 and from December 19, 2017; b) Dr. N.S. from January 11, 2018. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 2. Request that the August 2017 examiner (if unavailable, another examiner with appropriate expertise) review the virtual folder and provide an opinion as to whether a lumbar spine disability is at least as likely as not related to an in-service injury, event, or disease, to include during active service. In formulating the opinion, consideration should be given to the Veteran's lay assertions as detailed hereinabove and the April 2018 opinion of Dr. R.E.J. The examiner must provide a comprehensive rationale for all opinions proffered. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.