Citation Nr: 21066026 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 18-39 321 DATE: October 28, 2021 ORDER Service connection for bilateral foot arthritis and plantar fasciitis is granted. Service connection for degenerative joint disease of the left knee is granted. FINDINGS OF FACT 1. The Veteran served in combat in Iraq and was awarded the Combat Action Badge. 2. The Veteran's bilateral foot disability was incurred in service, symptoms of which have persisted since service separation. 3. The evidence is in equipoise as to whether the Veteran's left knee degenerative joint disease symptoms have been continuous since service separation. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral foot arthritis and plantar fasciitis are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for establishing service connection for degenerative joint disease of the left knee are met. 38 U.S.C. §§ 1110, (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2003 to September 2014. This matter come before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in August 2020 before the undersigned Veterans Law Judge; a transcript of the hearing is of record. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on 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 evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Bilateral Foot Arthritis and Plantar Fasciitis Initially, the Board finds that the Veteran has been diagnosed with a bilateral foot disability, to include arthritis and plantar fasciitis. See November 2017 VA foot examination report. Next, the Board finds that, although service treatment records are negative for a diagnosis or treatment for a bilateral foot disorder, the Veteran has credibly indicated that he began having foot pain sometime between 2010 and 2013 (during active-duty service). He has also indicated that he self-treated his symptoms with over-the-counter insoles. The Board finds that the Veteran is competent to report symptoms that he perceived through his own senses, including the bilateral foot pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, the Veteran served in combat and his contentions are consistent with the circumstances, conditions and hardships of that service. See Veteran's DD Form 214; 38 U.S.C. § 1154 (b). Post-service VA treatment records also support the Veteran's contention that his foot pain began in service. For example, in an October 2017 VA physical therapy consult note, the Veteran requested shoe inserts for his bilateral foot pain. He specifically reported that his pain started during service. The Veteran also indicated that he was prescribed his first inserts in 2010 and had yet to obtain new ones. The assessment noted that the Veteran had bilateral plantar fasciitis "that originated in 2008 during his time in service." The Board finds that the Veteran's statements regarding his bilateral foot pain that have been reported to his treating VA physicians and medical professionals have great probative value. This is because statements made to physicians for purposes of diagnosis and treatment is exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). These statements to the various medical providers have been consistent. The Veteran was also afforded a VA examination in November 2017. At that time, he again reported having first experienced bilateral foot pain in service. In support of the negative nexus opinion rendered, the examiner stated that service records showed no evidence of plantar fasciitis during service or at service separation. The Board finds that the rationale provided by the November 2017 VA examiner lacks probative value as the examiner provided a negative nexus opinion based solely on the lack of documentation of a foot disability in service treatment records. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service treatment records to provide a negative opinion.). Based on the above, the Board finds that the evidence is at least in equipoise on the question of whether there was onset of symptoms of a bilateral foot disorder in service and since service separation. The Veteran has competently and credibly reported having experienced bilateral foot pain in service. He has also indicated that he self-treated his symptoms, which may provide some explanation for the lack of treatment records in service and immediately following service separation. For these reasons, and after resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's bilateral foot disorder was incurred in service. As such, service connection is warranted. 38 C.F.R. § 3.102. Left Knee The Veteran maintains that he has left knee pain that first manifested in service and has persisted since that time. See August 2020 Board Hearing Transcript at pgs. 4-5. Initially, the Board finds that the Veteran has a current left knee disability, diagnosed as degenerative joint disease. See November 2017 VA knee examination report. The Board further finds that the evidence is in equipoise as to whether the Veteran experienced symptoms of a left knee disability continuously since service. Service treatment records include a left knee radiology report in January 2008, which indicated that the Veteran complained of left knee pain for 1 week (increasing with running and pivoting). The radiology report indicated a normal left knee. In a separate January 2008 note, the Veteran was found to have left knee joint pain in the patellofemoral region, when actively moved, worsened with running and pivoting. The pain was noted to have started gradually. The Veteran also had a positive Apley's compression test medially and laterally. A diagnosis of internal derangement of the left knee was noted. In a June 2014 Report of Medical History, completed by the Veteran at service separation, he specifically checked "YES" as to having "knee trouble." The Veteran further indicated that he experienced weakness in his knees and, despite physical therapy, there was no improving in his symptoms. In a June 2014 Report of Medical Assessment, the Veteran again reported that, since his last assessment, he had experienced worsening knee problems. Post-service VA treatment records show that in October 2017, the Veteran was diagnosed with degenerative changes in the left knee following x-rays. During a November 2017 VA examination report, the Veteran indicated that his bilateral knee pain started in 2008 and had persisted and worsened over time. The examiner diagnosed the Veteran with degenerative joint disease in the left knee and opined that the Veteran's disorder was not related to service. In support of this opinion, the examiner stated that the Veteran had an acute left knee condition in January 2008 and reported knee weakness in 2014. The Board finds the medical opinion from the November 2017 examiner to lack probative value. In this regard, the examiner did not explain why the Veteran's left knee disorder in 2008 was "acute," especially since the Veteran continued to report having knee trouble and weakness at service separation in June 2014. See June 2014 Report of Medical Assessment and Report of Medical History. The examiner also failed to consider and address the Veteran's lay statements of continued left knee pain after service. The Board finds that the Veteran is competent to report his observable symptoms of left knee pain during service and following service separation, and the Board finds him credible as his statements are internally consistent and supported by other evidence of record. See 38 C.F.R. § 3.159 (a)(1)(2); Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465, 46970 (1994). Accordingly, the Board finds that the competent and credible evidence is at least in equipoise as to whether the Veteran had continuous left knee symptoms of degenerative joint disease since service separation. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for a left knee disorder under 38 C.F.R. § 3.303 (b) are met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.