Citation Nr: A21020263 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 210413-152461 DATE: December 20, 2021 ORDER Service connection for bilateral plantar fasciitis is denied. REMANDED Entitlement to service connection for asthma is remanded. Entitlement to service connection for an eye condition due to trauma is remanded. Entitlement to service connection for lumbar strain is remanded. Entitlement to service connection for a condition to account for right hip pain is remanded. FINDING OF FACT The Veteran's bilateral plantar fasciitis was not incurred in service and is not otherwise related to service. CONCLUSION OF LAW The criteria to establish service connection for bilateral plantar fasciitis are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty in the United States Army from June 1965 to June 1968, with service thereafter in the North Carolina National Guard. The March 2021 rating decision on appeal was issued under the new Appeals Modernization Act (AMA) framework, and the Veteran initiated the appeal to the Board April 2021 with the filing of a Decision Review Request (VA Form 10182), requesting direct review by a Veterans Law Judge on the evidence of record at the time of the rating decision. In correspondence dated April 2021, the Board acknowledged the appeal and informed the Veteran and his representative at the time that the appeal had been placed on the Board's direct review docket. Thereafter, the Veteran appointed a new representative with the filing of VA Form 21-22, and in December 2021 the Board informed the new representative that the appeal had been placed on the Board's direct review docket. Under the AMA, when a claimant seeks appellate review through the Board's direct review docket, the Board may consider the evidence of record at the time of the rating decision on appeal, here as of March 4, 2021. 38 U.S.C. § 7113(a) (2012). The Board notes that potentially relevant evidence was added to the electronic claims file during a period of time when the record was closed and therefore, the Board may not consider this evidence at this time. The Veteran may submit this evidence, along with a supplemental claim, and VA will make another decision on the claim, considering any new evidence in addition to the evidence previously considered. Specific instructions for filing a supplemental claim are included with this decision. The Board recognizes that the issue of service connection for an eye condition due to trauma, asthma, lumbar strain, and right hip pain were previously denied on the merits in a final May 2018 rating decision under VA's legacy claim system. In the modernized claim system under AMA, VA will readjudicate a claim if new and relevant evidenced is presented or secured. 38 C.F.R. § 3.156(d). "Relevant evidence" is evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.2501(a)(1). In the March 2021 rating decision on appeal, the AOJ decided the issues on the merits and denied the claims. As the AOJ decided the issues on the merits, it is implied that it found that new and relevant evidence had been submitted, which is a favorable finding that is binding on the Board. 38 C.F.R. § 20.801(a). Therefore, the Board need not address new and relevant evidence here as the AOJ's March 2021 finding that new and relevant evidence had been submitted to reopen the Veteran's claims for service connection will not be disturbed on appeal. Procedural History In a May 2018 rating decision issued under the pre-AMA legacy claim system, as pertinent here, the AOJ denied the Veteran's claims for an eye condition due to trauma, asthma, lumbar strain, and right and left hip pain. See Rating Decision dated May 15, 2018. The Veteran was notified of the rating decision as well as his right to appeal within one year from the date of the notice, and enclosures with the notification included VA Form 21-0958 Notice of Disagreement for that purpose. See VA Notification Letter dated May 22, 2018. The Veteran mailed the Notice of Disagreement to VA on May 30, 2019. He was notified that as the Notice of Disagreement was received more than one year from the date of VA's May 22, 2018 notification letter, it was untimely, and the May 2018 rating decision was final. See VA Correspondence dated November 7, 2019. To the extent that the Veteran seeks a good cause exception for not timely filing a Notice of Disagreement with the May 2018 rating decision, he has not offered an explanation as to why the Notice of Disagreement with the May 2018 rating decision was untimely. Furthermore, the former representative's December 2020 assertion that the Veteran did not timely file a Notice of Disagreement due to the COVID-19 pandemic because he "was not able to get out and submit the corrected forms" is not persuasive because timely submission of the Notice of Disagreement with the May 2018 rating decision required that it be filed within one year of the date of VA's May 22, 2018 notice letter, i.e., no later than May 22, 2019, which preceded the COVID-19 pandemic. Therefore, neither the Veteran nor his former representative have provided "good cause" to extend the May 2019 filing deadline for a Notice of Disagreement with the May 2018 rating decision. Preliminary Matters Regarding the scope of the instant claims, the Board notes that in submitting the February 2021 supplemental claim for service connection, the Veteran specifically identified his right hip as the subject of his claim. See Decision Review Request: Supplemental Claim received February 24, 2021 (Section 13A). In its March 2021 rating decision, the AOJ noted "both" in reference to this claim, and the Veteran also referenced "both" in his appeal to the Board. However, as the rating decision on appeal reflects adjudication of service connection only in regard to the Veteran's right hip, the issue on appeal is limited to the question of service connection for a right hip disability and is appropriately recharacterized as such herein. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a claim is determined by the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Applicable 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). 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). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Presumptive service connection may be granted for chronic diseases listed under 38 C.F.R. § 3.309(a), including arthritis, where there is a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). However, plantar fasciitis is not among the diseases listed under 38 C.F.R. § 3.309(a) and while the Veteran has been diagnosed with arthritis of the right great toe, the evidence does not reflect diagnosis of the arthritis until more than 40 years after his separation from service. As such, establishing service connection pursuant to 38 C.F.R. § 3.303(b) is not for application. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran's particular 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a 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. In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Bilateral Plantar Fasciitis The Veteran contends that his bilateral foot pain is related to his active service. See Notice of Disagreement received June 8, 2019. Initially, the Board recognizes that the Veteran is currently diagnosed with bilateral plantar fasciitis and arthritis of the great right toe. See VA Primary Care Note dated February 9, 2021; VA Primary Care correspondence dated February 15, 2021. The claims file contains no evidence of an in-service incident that may have caused the Veteran's currently diagnosed plantar fasciitis. The STRs are silent for complaints, symptoms, or diagnosis of a foot injury or disorder. During his June 1965 enlistment examination and April 1968 separation examination, the Veteran denied foot trouble and no abnormalities of the feet were noted during either clinical evaluation. See Reports of Medical History and Reports of Medical Examination dated June 7, 1965 and April 25, 1968. The Veteran's service records do not contain any reports of a foot disorder or symptoms that would be evidence of a foot disability. The Veteran also has not raised any specific contentions of an in-service incident that may be the cause of his bilateral plantar fasciitis. As such, the Board cannot find that there was an in-service incident that may have caused the Veteran's plantar fasciitis. Though the Veteran was not provided with a VA examination for this claim, the Board finds that one is not warranted. VA is obligated to provide an examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishes that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability; and (4) insufficient competent evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, unlike the claims remanded below, there is no competent evidence of an in-service event, injury, or disease that occurred in service or indication that any in-service event, injury, or disease may be associated with the Veteran's plantar fasciitis or any other foot disorder. The Veteran also is not alleging that plantar fasciitis is related to another service-connected disability or a disability for which he is currently seeking service-connection. As such, McLendon does not apply, and VA is not obligated to obtain an examination for the Veteran's plantar fasciitis claim. Accordingly, the preponderance of the evidence weighs against this claim and the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As such, service connection for bilateral plantar fasciitis is denied. REASONS FOR REMAND Eye Condition VA is obligated to provide an examination and obtain a medical opinion in an initial claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). Here, in denying service connection for an eye disorder due to trauma, the AOJ incorrectly concluded that the Veteran is not currently diagnosed with an eye disability. Indeed, VA treatment records reflect a current diagnosis of macular degeneration. See, e.g., VA Primary Care Notes dated February 9, 2021. While the Veteran's treatment records do not reflect the type of macular degeneration with which he has been diagnosed, there are different types and causes of macular degeneration, including aging and environmental factors. See Mayo Clinic article at https://www.mayoclinic.org/diseases-conditions/dry-macular-degeneration/symptoms-causes/syc-20350375 (reviewed December 15, 2021). Notably, the Veteran's service treatment records reflect a possible eye injury due to chemical exposure, blurry vision, and at separation he endorsed eye trouble. See Chronological Record of Medical Care entry dated May 15, 1967; Report of Medical History dated April 25, 1968. This evidence is sufficiently suggestive of a nexus to trigger VA's duty to assist to provide an examination and obtain an opinion in developing the claim for service connection for an eye disorder. See McLendon, 20 Vet. App. at 83, 85 (recognizing that 38 C.F.R. § 3.159(c)(4) presents a low threshold for requirement that evidence indicate that claimed disability may be associated with in-service injuries for purposes of obtaining an examination and VA's duty to assist in providing an examination and obtaining a medical opinion). Accordingly, remand is necessary to cure this pre-decision duty to assist error. 38 C.F.R. § 20.802(a). Asthma In denying service connection for asthma, the AOJ concluded that the record does not include sufficient evidence to show that the Veteran's currently diagnosed asthma is related to service. However, in addition to evidence of a currently diagnosed disability, see, e.g., VA Primary Care Note dated February 9, 2021, the service separation examination reflects his endorsement of shortness of breath. See Report of Medical History dated April 25, 1968. This evidence is sufficiently suggestive of a nexus to trigger VA's duty to assist to provide an examination and obtain an opinion in developing the claim for service connection for asthma. See McLendon, supra. Although the Veteran was afforded a VA sinusitis/rhinitis examination in April 2018, neither the examination nor the associated VA medical opinion addresses the etiology of the Veteran's asthma. Accordingly, remand is necessary to cure this pre-decision duty to assist error. 38 C.F.R. § 20.802(a). Lumbar Strain In denying service connection for lumbar strain, the AOJ concluded that the Veteran's currently diagnosed degenerative disc disease of the lumbar spine is not related to service because the disability is not shown in the service treatment records. The rating decision relies, in part, on an April 2018 VA medical opinion that concludes, "During service, [the] condition was acute only. There is no evidence of chronicity of care." See VA Medical Opinion dated April 26, 2018. However, the April 2018 VA opinion is inadequate because the examiner did not identify the condition during service characterized in the opinion as acute. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). Additionally, the opinion does not address the Veteran's lay statements made during the examination describing a fall during service in 1967 in which he injured his back. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Critically, the opinion does not reference service treatment records reflecting the Veteran's report of paraspinal pain and his endorsement of recurrent back pain at separation. See Chronological Record of Medical Care entry dated April 19, 1967; Report of Medical History dated April 25, 1968. This is suggestive that the examiner's review of the Veteran's claims file was less than thorough. See Nieves-Rodriguez, supra. This evidence is sufficiently suggestive of a nexus to trigger VA's duty to assist to provide an examination and obtain an opinion in developing the claim for service connection for lumbar strain. See McLendon, supra. Accordingly, remand is necessary to cure this pre-decision duty to assist error. 38 C.F.R. § 20.802(a). Right Hip In denying service connection for a right hip disability, the AOJ acknowledged that the Veteran is currently diagnosed with right hip degenerative joint disease but observed that the condition is not reflected in the service treatment records. However, the January 2019 right hip diagnosis identified by the AOJ reflects that hip x-rays were obtained because the Veteran reported "intermittent shooting right groin pain[.]" See UNC Health Care radiology report dated January 14, 2019. These symptoms are similar to those recorded in the service treatment records, i.e., right groin pain, right flank pain, and paraspinal pain radiating into the right testicle area though the testicles were normal. See Chronological Record of Medical Care entries dated October 27, 1965 and April 19, 1967; Hematology Report dated November 1, 1967. Additionally, the service treatment records reflect that the Veteran reported hip pain for six months, although an x-ray revealed no evidence of hip, sacroiliac, or lumbar spine pathology. See Radiographic Report dated November 1, 1967. This evidence is sufficiently suggestive of a nexus to trigger VA's duty to assist to provide an examination and obtain an opinion in developing the claim for service connection for a right hip disability. See McLendon, supra. Accordingly, remand is necessary to cure this pre-decision duty to assist error. 38 C.F.R. § 20.802(a). The matters are REMANDED for the following actions: 1. Schedule the Veteran for VA examinations, by appropriately qualified VA clinicians as to the nature and etiology of the Veteran's asthma, an eye condition due to trauma, lumbar strain, and a condition to account for right hip pain. The claims file, and a copy of this Remand, must be made available to and be reviewed by each examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. *The examiner's review of the body of this Remand is recommended to assist in avoiding the errors that resulted in this Remand. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Identify all currently diagnosed asthma, eye disorder(s), lumbar spine disorder(s), and disorder(s) causing right hip pain that have been present at any point since the commencement of the claim period in February 2021. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that each currently diagnosed asthma, eye disorder, lumbar spine disorder, and disorder causing right hip pain onset during service, manifested within one year after service separation, or is otherwise etiologically related to service. Although the examiner must review the entire claims file, the examiner is requested to consider the pre-decisional lay statements of the Veteran regarding each claim, including, but not limited to, documents labeled "Notice of Disagreement" and "Statement in Support of Claim." *The Board's reference to evidence in this context should not be construed as a determination of its credibility. The examiner must provide a complete rationale for each opinion provided. 2. Thereafter, ensure that each examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.