Citation Nr: 21065662 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 14-37 035 DATE: October 27, 2021 ORDER Entitlement to service connection for a left foot disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his left foot disability is at least as likely as not related to an in-service injury, event, or illness. CONCLUSION OF LAW The criteria for entitlement to service connection for a left foot disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 2006 to March 2007 and from February 2008 to March 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this issue in January 2016 and March 2018 for additional development. The Veteran testified at a videoconference hearing in September 2015 before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In May 2019, the Board denied the Veteran's claim for entitlement to service connection for a left foot disability. The Veteran appealed this decision to United States Court of Appeals for Veterans Claims (Court). In February 2021, the Court issued a Memorandum Decision which set aside the denial and remanded that matter to the Board for further development, if necessary, and readjudication in compliance with directives specified. The February 2021 Memorandum Decision found the Board's decision and the relied upon October 2018 VA addendum opinion did not properly account for the Veteran's lay statements of in-service left foot problems and continuity of symptoms. The Court noted that the October 2018 addendum opinion did not mention the Veteran's lay statements in the rationale. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. Degmetich v. Brown, 104 F. 3d 1328 (1997). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). 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. Entitlement to service connection a left foot disability. The Veteran has a current diagnosis for left foot plantar fasciitis and contends that his condition had its onset during active service. As an initial matter, the Board notes that the Veteran was not shown to have arthritis of the left foot in service or within one year following discharge from service, as such, service connection cannot be established for arthritis on a presumptive basis. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran has reported that the pain in his left foot began during service while running and continued since that time. He reported that he first started having left foot problems in basic training, including daily pain that felt like "a nail in the heel of the foot" whenever he was running or marching. He reported that he was forbidden from wearing inserts in his boots then and had to just "work through the pain." During his AIT school, his left foot continued to hurt, and he had to purchase inserts, which helped with the pain. While in Iraq, his left foot began to hurt again while on patrols and he had to purchase lightweight boots with inserts. After his military service, the Veteran reported that he had to wear sports shoes for his job as a waiter due to help alleviate his continuing left foot pain. The Veteran reported that, although his left foot problems continued after service, he did not seek treatment for those problems until 2010. He reported that he was given inserts and injections at that time, with varying results, and his doctor ultimately recommended surgery. The Veteran is competent to report the circumstances of his service and the symptoms he experiences. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Board also finds him credible in that regard. The Board also finds that the Veteran has consistently reported his service history and medical history regarding his left foot disability in his treatment records, examinations, hearing testimony, and statements. The Veteran's post service treatment records show that he sought treatment for left heel pain in August 2013 and has continued to receive treatment since that time. As instructed by the January 2016 remand, the Veteran was provided a VA examination for foot conditions in February 2016. As instructed by the March 2018 remand, an addendum to the February 2016 was provided by the examiner in October 2018 to address deficiencies in the February 2016 examination. The VA examination and addendum diagnosed the Veteran with left foot plantar fasciitis and found that the Veteran's condition is less likely than not (less than 50 percent probability) caused by or related to service. However, as noted above, the Court's February 2021 Memorandum Decision found that the 2016 VA examination and 2018 addendum remained inadequate, as they failed to properly account for the Veteran's lay statements and reported continuity of symptoms. The Board acknowledges that, given the deficiencies in the VA examination and addendum, further medical inquiry could be undertaken to develop this claim. However, the United States Court of Appeals for Veterans Claims has cautioned VA against seeking additional medical opinions where favorable evidence in the record is unrefuted (or, as here, at worst evenly balanced for and against the claim) and indicated that it would not be permissible to undertake further development in this circumstance if the sole purpose was to obtain evidence against an appellant's claim. Mariano v. Principi, 17 Vet. App. 305, 312 (2003); see also Douglas v. Shinseki, 23 Vet. App. 19 (2009) (distinguishing Mariano and contrarily holding that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim). There is a serious question in this case as to whether the foot disability is related to military service that ended in March 2009, years before the foot disability was treated. As some examiners have noted, the service and post-service treatment records do not appear to support this claim. However, as the Board and the Court have remanded this case several times, additional delay of the case should be avoided, if possible. The Court is asking the examiner an intricate question based on complex issues of credibility the examiner may not be able to fully address (such as whether the Veteran's lay statements are accurate), leaving the Board and the Veteran without resolution in this case. Further, we can not ask an examiner to be a factfinder in a case. Fortunately, the Veteran was provided an opinion regarding the nexus of his left heel pain by a VA neurologist in December 2015 followup consultation. The neurologist found that the Veteran's plantar heel pain was likely medial calf muscle contraction secondary to repetitive injury sustained while in service. The neurologist found that the Veteran's symptoms, examination, and imaging studies were not consistent with radicular pain. The neurologist stressed that they believed that the Veteran sustained mechanical injury during his time in service and that this injury caused his current pain. The neurologist also provided an addendum that noted that he interviewed and examined that patient. The neurologist concluded that the Veteran's left heel pain is likely the result of repetitive overuse in military service, including long marches, heavy lifting, and martial arts exercises. The Board acknowledges that the neurological opinion and consultation arose from claims related to lower extremity radiculopathy. However, regardless of the context, the neurologist provided a comprehensive analysis regarding the cause and onset of the Veteran's left foot pain. The left foot disability is the issue before the Board. The Board finds that the VA neurological opinion is competent and credible. Moreover, given the inadequacy of the 2016 VA examination and 2018 addendum found by the Court, the Board finds that this opinion, which is supported by an interview, imaging studies, and thorough examination of the Veteran, is the most probative evidence of record. Significantly, the VA neurological opinion is also consistent with the Veteran's account of his service, medical history, and continuity of left foot symptoms. In this regard, the Board finds that the Veteran has consistently and credibly asserted that his left foot disability symptoms had their onset during service and have continued since that time. Considering the Veteran's consistent and credible statements and the positive nexus opinion contained in the December 2015 VA neurological opinion, the Board finds that the evidence of record is at least in relative equipoise as to whether the Veteran's left foot disability is related to military service. The Board notes that when the evidence is in relative equipoise, by law; the Board must resolve all reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (Continued on the next page) Therefore, the Board finds that service connection for a left foot disability is warranted. The extent of the problem is not before the Board at this time. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board 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.