Citation Nr: 21068551 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 15-26 440 DATE: November 10, 2021 ORDER Entitlement to service connection for a bilateral foot disorder, to include bilateral calcaneal spurs, foot arthritis, and plantar fasciitis, is granted. FINDINGS OF FACT 1. The Veteran has a high arch congenital defect of his feet that pre-existed service. 2. The evidence is insufficient to show that the Veteran's high arch congenital defect was not clearly and unmistakably not aggravated by service. 3. The Veteran's bilateral calcaneal spurs, foot arthritis, and plantar fasciitis are superimposed injuries to his high arch congenital defect. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral foot disorder, to include bilateral calcaneal spurs, foot arthritis, and plantar fasciitis, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from January 1975 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). This matter was previously before the Board in May 2019 and April 2021, at which time the Board remanded the claim for further development. 1. Entitlement to service connection for a bilateral foot disorder, to include bilateral calcaneal spurs, foot arthritis, and plantar fasciitis Service connection 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A Veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed prior to service and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Once the presumption of soundness applies, the burden is not on the claimant to show that his disability increased in severity; the burden is on VA to establish by clear and unmistakable evidence that a pre-existing disease did not increase in severity during service or that any increase was due to the natural progress of the disease. This burden must be met by affirmative evidence demonstrating that there was no aggravation. Horn v. Shinseki, 25 Vet. App. 231 (2012). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. § 3.303(c), 4.9; Winn v. Brown, 8 Vet. App. 510, 516 (1996). Congenital or developmental defects therefore cannot not be service-connected because they are not diseases or injuries under the law; however, if superimposed injury or disease occurred during service, service-connection may be established for the resultant disability. VAOPGCPREC 82-90. Analysis Service treatment records show that on March 7, 1975, the Veteran was admitted to a naval hospital with pain, swelling, and erythema over the metatarsophalangeal (MTP) joints bilaterally. Subsequently his knees became progressively tender, swollen, hot, and painful. He developed a low-grade fever with a rash over the arms, chest, and back. He was placed on bedrest. He had received his third series of vaccinations two weeks prior to admission. The joint pains and rash resolved on the second and third day of hospitalization and the Veteran was ambulating without difficulty. He was discharged on March 21, 1975 with a diagnosis of acute arthritis; the impression noted that the Veteran sustained an episode of serum sickness and had an incidental finding of staphylococcus pharyngitis. August 1975 service treatment records show complaints of stiff knees since the prior night. A January 1976 separation report of medical examination was negative for bilateral foot complaints. A private treatment record dated January 25, 2013, noted that an x-ray report indicated there was a tiny plantar calcaneal spur. There was no evidence of acute or focal osseous abnormality and no erosive changes were seen. Bilateral hallux valgus and bilateral foot pain were noted. A May 2016 VAMC primary care note indicates that the Veteran complained of burning sensations bilaterally in his feet/ankles/toes. The Veteran was afforded a VA examination in August 2016. The examination report reflects a diagnosis of degenerative arthritis in the bilateral feet confirmed by x-rays. The x-ray report indicated a clinical history of foot pain. The report stated that there is no fracture or deformity of the left foot. There is mild to moderate arthritis of the first MTP joint with narrowing of the joint and mild spurring. The impression was mild to moderate arthritis of the first MTP joint of the left foot, otherwise unremarkable. As to the right foot, the report indicated mild to moderate arthritis of the first MTP joint. The report noted small, rounded lucency within the middle cuneiform of uncertain etiology, possibly congenital. The examiner noted that during service in 1975 the Veteran was admitted to the hospital after his third series of immunization shots with a diagnosis of acute arthritis (joint pains) with an incidental finding of staph pharyngitis, and a probable diagnosis of serum sickness reaction status post immunizations. The Veteran was discharged two weeks later with joint pain, rash, fever, proteinuria and elevated SED rate resolved. There was no diagnostic evidence for rheumatoid arthritis and collagen vascular diseases. The examiner noted that January 2013 x-rays showed tiny plantar calcaneal spurs, which were resolved. The examiner opined that the Veteran's bilateral foot calcaneal spurs were less likely than not related to service because the spurs evident in the January 2013 x-rays were absent on the present day's x-rays. The examiner noted that calcaneal spurs were an expected finding of the aging skeleton. Therefore, the examiner found that it was less likely than not that calcaneal spurs were incurred in or caused by a diagnosis of acute arthritis from serum sickness and staph pharyngitis while in military service. In May 2019, the Board remanded the Veteran's claim for further development, finding the April 2016 medical opinion inadequate as the examiner failed to provide an opinion as to whether the Veteran's current diagnosis of degenerative arthritis of the bilateral feet was related to his in-service diagnoses. In addition, the Board noted that the Veteran stated that his wife's doctor told him that his bilateral foot disability was rheumatoid arthritis, which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board noted that X-rays in August 2016 showed left foot mild to moderate arthritis of the first MTP joint and right foot mild to moderate arthritis of the first MTP joint with small, rounded lucency within the middle cuneiform of uncertain etiology, possibly congenital. The Veteran was afforded a VA examination in January 2020. The Veteran reported severe and debilitating foot pain starting while on active duty during boot camp. He noted bilateral foot pain, primarily heels and soles of both feet. The date of onset was noted as 1975. The Veteran stated he was hospitalized at that time. Current symptoms were noted as progressing bilateral foot pain. The Veteran reported sharp, shooting foot pain bilaterally on the sides and bottoms and heels, aggravated with jogging, walking on hard surfaces. He reported foot swelling about twice per week. He stated that he was unable to mow his lawn; he cannot be on his feet for that long. He stated he can no longer do any jogging. He has pain in feet with lifting or carrying anything heavy. He has to wear a wider shoe to accommodate for intermittent swelling. The Veteran regularly uses arch supports. The examiner noted functional loss including bilateral swelling, disturbance of any locomotion, interference with standing, pain, and lack of endurance. Bilateral x-rays were noted as essentially unremarkable; no evidence of calcaneal spurring or degenerative arthritis. The Veteran reported that he lost 1-2 weeks work time in the last 12 months. He indicated that his job requires "moving up and down and prolonged standing and walking," which are limited by plantar fasciitis. The examiner opined that the Veteran's current bilateral foot disability, to include bilateral calcaneal spurs, bilateral plantar fasciitis, and bilateral degenerative arthritis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, to include acute arthritis. The rationale was that the Veteran has very small calcaneal spurs on both feet noted on current radiographs dated 1/16/2020 and noted on cited 2013 bilateral foot x-rays. The examiner stated that the Veteran has a high arch foot type which commonly causes these spurs to develop. The calcaneal spurring noted has nothing to do with the "serum sickness" documented during service. "Serum sickness" is a condition which involves multiple body systems (joints, skin, kidneys, etc.). With treatment, all of the symptoms and lab abnormalities resolved without residual sequela, as documented in the narrative summary, and the Veteran was discharged back to duty. The associated "arthritis" at that time was acute only and resolved. The examiner stated that there is no evidence, either at the time of illness during service, nor at the current evaluation, of rheumatic fever or rheumatoid arthritis. The examiner noted that the Veteran's foot examination revealed a high arch foot type which commonly leads to these spurs-this is a result of the foot type and does not indicate a degenerative process. The examiner further stated that the Veteran also has a diagnosis of bilateral plantar fascitis and mild to moderate bilateral first MTP degenerative arthritis with degenerative changes of both first MTP joints (big toe joints). The examiner stated that these changes are mild to mild-moderate, very common in a patient of this age, and not a sequelae of acute illness-it is the result of age/wear and tear over time. Furthermore, the examiner stated that plantar fascitis is very common in those patients with high arch foot type and also unrelated to any acute multisystem illness in 1975, which was treated and resolved. The examiner found that all of the currently diagnosed conditions are the result of developmental foot type and wear and tear over time. Therefore, he opined that the bilateral calcaneal spurs, bilateral first MTP degenerative arthritis and bilateral plantar fascitis are less likely than not (less than 50 percent probability) incurred in or caused by any in-service injury, event, or illness. In its April 2021 decision, the Board remanded the issue of service connection for a bilateral foot disability. The Board noted that the January 2020 examiner did not opine whether the Veteran's bilateral foot disability was related to his in-service diagnosis of staphylococcus pharyngitis. As the examiner's opinion did not fully address the Veteran's contentions, the Board found that another remand was necessary to obtain an adequate opinion, and also to attempt to obtain relevant treatment records which were referred to by the Veteran. The Veteran was afforded a VA examination in July 2021. The examiner diagnosed plantar fasciitis. The Veteran reported that he experienced severe and debilitation foot pain starting on active duty during boot camp and that he was hospitalized for over 2 weeks for swelling in feet and had to be carried to hospital. He stated that he was "given all types of medications." He remembered his feet were swollen and hot. After he was released from the hospital, he went back to active service and developed foot pain again. He stated that he did not go to the hospital but his feet ached all the time after that. He did not get treatment. He reported that the pain persisted and worsened and then 6 years ago saw foot specialist in Maryland where was prescribed high doses of vitamin D and other medication. He reported that his feet were x-rayed. He saw that healthcare provider twice but did not return because treatment did not help. He reported progressing bilateral foot pain, with sharp shooting pain bilaterally on the sides and bottoms and heels, which is aggravated with jogging and walking on hard surfaces. He reported foot swelling about twice per week. He stated he has to wear a wider shoe to accommodate the intermittent swelling. He reported that currently his feet are always painful it starts in morning when he awakens with sharp shooting in sides and bottom of both feet and heels and it comes and goes throughout the day. He reported the episodes are a minute long and resolve and after about 1-1 12 hours it recurs, nothing helps. He reported pain with weight bearing, interference with standing, and lack of endurance. The examiner noted symptoms of swelling, disturbance of locomotion, interference with standing, pain and lack of endurance bilaterally. The Veteran reported limited ability to mow his lawn as he cannot be on his feet that long. He can no longer jog. He has pain in his feet with lifting or carrying anything heavy. The examiner opined that the Veteran's bilateral foot disability was less likely than not (less than 50 percent probability) incurred in or caused by staphylococcus pharyngitis during service. The rationale was that during service, staphylococcus pharyngitis was acute only. The examiner found that there is no evidence that the diagnosis has any bearing on the Veteran's current bilateral plantar fasciitis. Private treatment records dated between June 2021 and September 2021 note the following problems: bilateral foot pain; osteoarthritis, ankle/foot; osteoarthritis, generalized, multiple joints; Vitamin D deficiency. The Veteran was prescribed Meloxicam. A history of recurrent heel/foot pain/swelling over many years was noted, now with knee involvement. His healthcare provider stated that the Veteran needs further evaluation for underlying inflammatory arthritis; his symptoms are atypical as he has no prolonged stiffness, nor synovitis, on examination. He presented for evaluation of rheumatic disease. He described symptoms of increased frequency of foot and knee pain which occurs daily. He stated that he had similar symptoms in 1975 during active service and he was hospitalized for two weeks and diagnosed with "acute arthritis." His symptoms were felt to be related to activity (extensive walking and carrying heavy equipment.) He had recurrent pain/swelling in 1976. He has had episodic pain and swelling in his feet. The Board finds that the VA examinations and opinions are based on in-person examinations and a complete review of the record including private and VA medical records, and the Veteran's lay statements. As to the lay statements, the Veteran is considered competent to report his symptoms during service and his current symptoms and the Board finds his statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (2007). However, while the examiners opined that the Veteran's bilateral foot disorder is not related to his in-service hospitalization for multisystem illness in 1975, the examination reports and rationales for such opinions support another theory of service connection that the Board must now address. Moody v Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). That is, the January 2020 examiner noted that the Veteran's foot examination revealed a high arch foot type which commonly leads to calcaneal spurs and that this is a result of the Veteran's "foot type" and does not indicate a degenerative process. The January 2020 examiner also noted a diagnosis of plantar fascitis and stated such disorder is very common in patients with high arch foot type. The July 2021 examiner noted a diagnosis of plantar fasciitis and found that plantar fasciitis is very common in patients with high arch foot type and unrelated to any acute multisystem illness during service. The examiner found the Veteran's currently diagnosed conditions are the result of a developmental foot type and wear and tear over time. As noted above, congenital defects are considered to have pre-existed service. 38 C.F.R. § 3.303 (c), 4.9. However, if the defect was aggravated such that a superimposed injury occurred during service, service connection may be established for the resultant disability. VAOPGCPREC 82-90. Here, the Board finds that the examination reports and examiners' opinions indicate that the Veteran's high arch-type congenital condition is likely a developmental defect, and are sufficient to relate calcaneal spurs, bilateral foot arthritis, and plantar fasciitis as superimposed injuries. The evidence of record is not sufficient to rebut the presumption of soundness (the condition may have preexisted service but it was not shown to be clearly and unmistakably not aggravated by service), given the Veteran's competent and credible statements about foot pain during service, and the January 2020 examiner's concession that all of the Veteran's currently diagnosed foot conditions are the result of a developmental foot type and wear and tear over time. In sum, the Board finds that the evidence of record, including medical records, imaging, VA examinations, and associated medical opinions shows that the Veteran's calcaneal spurs, bilateral foot arthritis, and plantar fasciitis are superimposed injuries that are related to his pre-existing high arch foot defect, providing the requisite link between the Veteran's service and his current foot disorder to warrant service connection for such disabilities. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.