Citation Nr: 21077051 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-36 262 DATE: December 28, 2021 ORDER Service connection for left foot plantar fasciitis is denied. REMANDED Entitlement to service connection for irregular heartbeat and murmurs is remanded. Entitlement to service connection for hemorrhoids is remanded. FINDING OF FACT The weight of the competent and probative evidence is against finding that the Veteran has, or has had at any time during the appeal or proximate to its filing, a current disability of left foot plantar fasciitis. CONCLUSION OF LAW The criteria for entitlement to service connection for left foot plantar fasciitis are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1983 to October 1986. He also had additional service in the Reserves and National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified, sitting in Indianapolis, Indiana, before the undersigned via a Travel Board hearing. A transcript of the hearing has been associated with the virtual file and reviewed. In January 2020, the Board remanded the above matters for further development. As the requested development has not been completed as to the irregular heartbeat and murmurs and the hemorrhoids claims, these matters are remanded again to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The 2020 Board remand also include the issue of entitlement to service connection for left foot arthritis with plantar fasciitis and bilateral pes planus. While in remand status, an August 2020 rating decision granted service connection for pes planus, bilateral, and left foot arthritis, both effective January 19, 2011. As such, these matters are no longer before the Board. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Service connection for left foot plantar fasciitis. The Veteran contends that his left foot plantar fasciitis is related to active service. A January 2020 Board decision remanded the claims for service connection for left foot arthritis with plantar fasciitis and service connection for bilateral flatfeet. The Board noted the Veteran's testimony during the March 2019 Board hearing that he started experiencing foot pain while in active service, that his foot pain was exacerbated during training with the Reserves and National Guard, to include standing on his feet for prolonged periods of time as a cook, and that his foot conditions were further aggravated by his service-connected knee conditions. The Board directed the AOJ to schedule the Veteran for VA examinations to determine the nature and etiology of the aforementioned conditions. 01/09/2020, BVA Decision. As noted above, the August 2020 rating decision granted service connection for left foot arthritis and bilateral flatfeet. 08/14/2020, Rating Decision. Accordingly, the remaining issue is whether the Veteran is entitled to service connection for left foot plantar fasciitis. A March 2020 in-person VA examination indicated that the Veteran is not diagnosed with plantar fasciitis. Specifically, the examiner remarked that a diagnosis of plantar fasciitis is not warranted because there is no tenderness of the plantar fascia in either foot and there is no objective evidence of the condition. 03/04/2020, C&P Exam. The Board recognizes the Veteran's belief that he has left foot plantar fasciitis due to his active service. In this regard, in Jandreau v. Nicholson, 492 F. 3d. 1372, 1377 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient is an issue of fact. In this case, the lay evidence is insufficient to establish a diagnosis of a left foot plantar fasciitis, as none of the factors set forth above have been satisfied. While the Veteran is competent to report observable symptoms, he is not competent to conduct diagnostic testing to show a current disability. Moreover, the question of whether symptoms are representative of a diagnosis is a medical question requiring medical expertise. As such, the Veteran's assertions cannot establish the element of current disability as they are not competent in this situation. Additionally, even in light of Saunders, when there is pain that may arise to a functional impact of earning capacity, here the Veteran is separately service-connected for left foot arthritis and bilateral flatfeet and these are being collectively compensated. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997). Here, the probative and competent evidence weights against a finding that the Veteran has a current disability, as the competent and probative evidence of record does not tend to establish a diagnosis or functional impairment related to left foot plantar fasciitis. The benefit-of-the-doubt rule has been considered but the weight of the evidence is against the claim. 38 C.F.R. § 3.102. As such, service connection is not warranted. REASONS FOR REMAND 2. Entitlement to service connection for irregular heartbeat and murmurs is remanded. A January 2020 Board decision noted the Veteran's contention that he was diagnosed with his heart condition during a period of active duty for training while serving in the National Guard. The Veteran's was diagnosed to have an irregular heartbeat as early as November 2008. However, the military personnel records do not indicate specific periods of active duty for training (ACTDUTRA) or inactive duty training (INACTDUTRA). The Board in 2020 remanded this issue and directed the AOJ to obtain up-to-date records of the Veteran's periods of ACTDUTRA and INACTDUTRA and schedule the Veteran for a VA examination to determine the nature and etiology of his irregular heartbeat and murmurs. 01/09/2020, BVA Decision. In January 2020, some of the Veteran's military personnel records were associated with the claims file, which show that the Veteran had periods of ACTDUTRA in 1991. 01/23/2020, Military Personnel Records. However, it is unclear to the Board whether the service records are complete, as the updated records are devoid of any service treatment records and do not include records that definitively report the Veteran's periods of ACTDUTRA and INACTDUTRA. Subsequently, a March 2020 VA examination noted diagnoses of holosystolic murmur due to trace mitral regurgitation and asymptomatic arrhythmia. The examiner opined that it is less likely than not that the Veteran's irregular heartbeat occurred during service. The examiner did not provide a rationale for this opinion but did indicate that the Veteran does not currently have an irregular heartbeat. The examiner also opined that it is less likely than not that the Veteran's heart murmur occurred during his period of active service. The rationale was based on a lack of diagnosis in the service treatment records. However, the examiner did not provide an opinion as to the etiology of the Veteran's current heart conditions, which include holosystolic murmur due to trace mitral regurgitation and asymptomatic arrhythmia. 03/04/2020, C&P Exam; 03/04/2020, C&P Exam (medical opinion). The Board finds that the remand directives were not substantially complied with and, therefore, another remand is warranted. Stegall, 11 Vet. App. at 271. The AOJ made insufficient efforts to obtain up-to-date records of the Veteran's periods of ACTDUTRA and INACTDUTRA, to include service treatment records from those periods of service. Furthermore, the Board finds that the March 2020 VA examination is incomplete as rationale supporting the examiner's opinion solely relies on the lack of a diagnosis in the service treatment records, which are incomplete regarding the Veteran's periods of ACTDUTRA and INACTDUTRA. Moreover, the March 2020 VA examiner did not provide an opinion as to the etiology of the Veteran's current heart conditions. Accordingly, the Board finds that the March 2020 VA examination is incomplete, and an addendum opinion is needed. 3. Entitlement to service connection for hemorrhoids is remanded. A January 2020 Board decision noted the Veteran's contention that he treated for hemorrhoids during active duty and was provided a cream to treat the symptoms. The Veteran's testimony is corroborated in part by a lay statement from his colleague, who asserted that she also observed service treatment records indicating that he was diagnosed and treated for bleeding from the rectum due to hemorrhoids with frequent occurrences at the Fort Lewis Army Medical Facility between 1984 and 1985. The Board remanded this issue and directed the AOJ to update the Veteran's claims file complete service treatment records, to include treatment records from the Fort Lewis Army Medical Facility, and schedule the Veteran for a VA examination to determine the nature and etiology of his hemorrhoids. In January 2020, some of the Veteran's military personnel records were associated with the claims file, which show that the Veteran was stationed at Fort Lewis. 01/23/2020, Military Personnel Records. However, the updated service records do not include any treatment records from the Fort Lewis Army Medical Facility. Subsequently, a March 2020 VA examination noted a diagnosis of hemorrhoids. The examiner opined that it is less likely than not that the Veteran's hemorrhoids are related to service. The rationale is based on a lack of service treatment records documenting treatment for hemorrhoids during active service. 03/04/2020, C&P Exam; 03/04/2020, C&P Exam (medical opinion). The Board finds that the remand directives were not substantially complied with and, therefore, another remand is warranted. Stegall, 11 Vet. App. at 271. The AOJ made insufficient efforts to obtain complete service treatment records, to include treatment records from the Fort Lewis Army Medical Facility. Furthermore, the AOJ did not document whether the records could not be obtained or do not exist, did not document the efforts taken to obtain these records, and did not notify the Veteran of any unavailable records, as required by the Remand directives. Furthermore, the Board finds that the March 2020 VA examination is incomplete as rationale supporting the examiner's opinion solely relies on the lack of documentation of hemorrhoids in the service treatment records, which are incomplete as to any treatment records from the Fort Lewis Army Medical Facility. Moreover, the March 2020 VA examiner did not provide an opinion as to the etiology of the Veteran's current hemorrhoid condition. Accordingly, the Board finds that the March 2020 VA examination is incomplete, and an addendum opinion is needed. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records, including any records documenting medication provided to the Veteran for the treatment of hemorrhoids. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. Obtain the Veteran's military personnel records and service treatment records that have not already been associated with the claims file. Specifically, obtain records of the Veteran's periods of ACTDUTRA and INACTDUTRA. Additionally, obtain treatment records from the Fort Lewis Army Medical Facility between 1984 and 1985. If records cannot be obtained or do not exist, document this in the claims file and the efforts taken, to include notifying the Veteran of any unavailable records. 3. After completing directives #1 and #2, obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran's irregular heartbeat and murmurs. An in-person examination is not required unless deemed necessary by the clinician. The clinician is to review the virtual file, including a copy of this Remand. The clinician is to provide an opinion whether any current heart condition is at least as likely as not related to an in-service injury, event, or disease. The clinician is to also provide an opinion as to the etiology of any current heart condition. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After completing directives #1 and #2, obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran's hemorrhoids. An in-person examination is not required unless deemed necessary by the clinician. The clinician is to review the virtual file, including a copy of this Remand. The clinician is to provide an opinion whether any current hemorrhoids condition is at least as likely as not related to an in-service injury, event, or disease. The clinician is to also provide an opinion as to the etiology of any current hemorrhoids condition. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Han 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.