Citation Nr: 21066681 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-47 758 DATE: November 1, 2021 ORDER Entitlement to service connection for bilateral plantar fasciitis, to include as secondary to service-connected right hip tendonitis is denied. FINDING OF FACT Bilateral plantar fasciitis was not incurred in or caused by the Veteran's service and is not proximately due to or otherwise aggravated by the Veteran's service-connected right hip tendonitis. CONCLUSION OF LAW The criteria to establish service connection for bilateral plantar fasciitis, to include as secondary to service-connected right hip tendonitis, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2002 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This matter was previously before the Board of Veterans' Appeals (Board) in June 2020 when the issue of service connection for bilateral plantar fasciitis, to include as secondary to service-connected right hip tendonitis, was remanded for further development. Further development having been completed; the matter is once again before the Board. The Board also remanded the issues of entitlement to service connection for a spine disability and a left knee disability. These claims were granted in an August 2021 rating decision. The award of service connection constitutes a full grant of the issues on appeal; those matters are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Entitlement to service connection for bilateral plantar fasciitis, to include as secondary to service-connected right hip tendonitis is denied. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability, where aggravation is shown by a pre-aggravation baseline level of disability compared to the current level of disability. 38 C.F.R. § 3.310(b). 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 evidence favorable to the claimant. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding 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). Regarding the competency of lay evidence, 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. See 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, as symptoms require only personal knowledge of what is observed using his senses, not medical expertise. See Layno, 6 Vet. App. At 469. Lay testimony is competent to establish the presence of observable symptom-atology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 307 (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. See Jandreau, 492 F.3d at 1377. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Analysis The Veteran contends that his bilateral plantar fasciitis is related to active service or as secondary to service-connected right hip tendonitis. For the reasons set forth below, service connection for bilateral plantar fasciitis is not warranted on any basis. As to current disability, the Veteran was diagnosed with plantar fasciitis at an August 2021 examination and this element is established. See August 2021 Examination. The Veteran's service treatment records (STRs) indicate that the Veteran was not treated for plantar fasciitis or complaints of foot pain in service and examination on separation shows the Veteran did not report bilateral foot pain. See May 2006 Examination. Importantly, the Veteran reported right hip tendonitis symptoms as result of physical training but did not report any complaints regarding his feet. The Veteran reported in a February 2018 statement that he believed he had high arches on entrance to service and that he developed pes planus, or flat feet during active duty as a result of combat boots and infantry related activities of marching and entering and exiting vehicles. See February 2018 Statement. Here, the medical evidence does not indicate the Veteran manifests pes planus because there is no diagnosis of this disability and it was not identified on physical examination in August 2021. Pursuant to the June 2020 Board remand, a VA examination was ordered, and the examiner was asked to address whether the Veteran's bilateral plantar fasciitis was incurred in service or was caused by an in-service injury, event, or illness or service-connected disability of right hip tendonitis. The examiner was also directed to address the Veteran's contentions of symptoms in service of bilateral foot pain and to identify the likely etiology, to the extent possible, of the Veteran's bilateral plantar fasciitis. The Veteran was afforded a VA examination in August 2021. The examiner noted that an in-person examination was conducted and that a review of the Veteran's VA e-folder was completed in conjunction with the examination. The examiner recorded the Veterans' reports of bilateral foot pain in service as a result of physical training and infantry related activities. See August 2021 Examination. The August 2021 examiner opined that the Veteran's bilateral plantar fasciitis was less likely than not incurred in or caused by active service given the lack of treatment for foot pain, disease, or injury during active duty. The examiner stated that there is no medical evidence to support a diagnosis of plantar fasciitis in-service. The examiner opined that the Veteran's current bilateral plantar fasciitis is less likely than not related to any in-service complaint. The August 2021 examiner also found the Veteran's right hip tendonitis did not cause or aggravated plantar fasciitis. In support of their opinion, the examiner noted there is no pathophysiological relationship between these two conditions and no medical evidence indicated a relationship in the Veteran's case. The Board notes it is unclear as to how the Veteran contended his right hip tendonitis resulted in bilateral plantar fasciitis. See December 2017 Statement. To the extent that the Veteran's service treatment records fail to corroborate his contentions that he experienced bilateral foot pain, the Board notes that the absence of evidence does not automatically constitute substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). In order to find that silence in the record contradicts lay testimony, the Board "must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation." Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231, 239, n.7 (2012) for the proposition that "the absence of evidence cannot be substantive negative evidence without 'a proper foundation... to demonstrate that such silence has a tendency to prove or disprove a relevant fact.'"). Here, the Veteran's service records do not show treatment for or complaints of bilateral foot pain, disease, or injury. Moreover, when examined on separation from active service, the Veteran reported a history of right hip tendonitis on exertion, but did not report symptoms of bilateral foot pain, disease, or injury. Finally, the Veteran's medical record is silent for complaints of bilateral foot pain, disease, or injury until approximately 2019. See July 2019 Medical Record. The Board acknowledges his assertions of bilateral foot pain in service and finds that he is credible as to these assertions despite the lack of corroborating evidence. However, the Board also finds the lack of evidence of foot disease or injury in service, or on examination in May 2006, or in the medical record from separation until the Veteran filed his claim in December 2017 weighs against his assertions of incurrence of bilateral foot disability in service. The Board find the Veteran credible his feet may have hurt during active duty, but the record as a whole weighs against a finding of incurrence of plantar fasciitis in service. While the Veteran believes that his bilateral plantar fasciitis is related to service, to include service-connected right hip tendonitis, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1377. In this regard, the diagnosis and etiology of the Veteran's condition is not a matter capable of lay observation and requires medical expertise to determine. Accordingly, the lay evidence does not constitute competent medical evidence and therefore lacks probative value in determining whether there is a medical nexus between the Veteran's service-connected disability and her bilateral plantar fasciitis. There is no other evidence that the Veteran's bilateral plantar fasciitis is directly related to service or secondarily related to service-connected except the Veteran's lay statements. Thus, in the absence of probative evidence linking the claimed condition to service or to a service-connected disability, there is no basis to establish service connection on a direct or secondary basis. The probative medical evidence of record has indicated that the Veteran's bilateral plantar fasciitis was not incurred in or caused by service and is not caused or aggravate by service-connected right hip tendonitis. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. The claim is denied. See 38 C.F.R. § 5107(b); 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.