Citation Nr: 21005445 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-41 267 DATE: February 1, 2021 ORDER Entitlement to service connection for a bilateral foot disability, to include plantar fasciitis, is denied. FINDINGS OF FACT 1. Bilateral moderate pes planus (flat feet) was noted on enlistment medical examination, and the most probative evidence indicates that the preexisting bilateral pes planus was not aggravated beyond normal progression by active service. 2. The preponderance of the evidence is against finding that a bilateral foot disability, to include plantar fasciitis, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability, to include plantar fasciitis, are not 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 initial active duty for training from January to May 1988, active duty from November 1990 to May 1991 and June to September 2002, and additional periods of service in the in the Air National Guard (ANG). He had service in the Southwest Asia theater of operations during the Persian Gulf War. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran requested a Board hearing with regard to the issues denied in the January 2019 rating decision, but by a statement dated in May 2020, he withdrew his hearing request. The Board remanded this case to the AOJ in September 2020, and the case was subsequently returned to the Board. 1. Service connection for a bilateral foot disability, to include plantar fasciitis The Veteran contends that his current bilateral plantar fasciitis was caused and/or aggravated by prolonged wearing of combat boots during his periods of service. See his September 2019 notice of disagreement. His original claim of service connection for this disability was received in September 2018. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under the law, active military service includes (1) active duty, but also (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury, but not disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C. § 101 (24) (B); 38 C.F.R. § 3.6 (a). As a threshold matter, “veteran” status must be established as a condition of eligibility for service connection benefits. Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013) (observing that it is “axiomatic that, to receive VA disability compensation benefits, a claimant must first establish veteran status”). To establish status as a veteran based upon a period of ACDUTRA, a claimant must establish that he or she was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. §§ 3.1 (a), (d); Harris v. West, 13 Vet. App. 509 (2000). The fact that a claimant has established status as a veteran for other periods of service does not obviate the need to establish that he is also a veteran for purposes of the period of ACDUTRA where the claim for benefits is based on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415 (1998). Without the status as a veteran, a claimant trying to establish service connection cannot use the many presumptions in the law that are available only to veterans. For example, presumptive periods allowing for the presumed incurrence of a condition in service do not apply to ACDUTRA or INACDUTRA, and neither do the presumptions of soundness and aggravation. See Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010); Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474 (1991). Even for veterans who have achieved “veteran” status through a prior period of active service and now claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been “examined, accepted, and enrolled for service” and where that examination revealed no “defects, infirmities, or disorders.” Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). In other words, there must be an entrance examination prior to the period of ACDUTRA (or INACDUTRA) in which the veteran claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Id. at 45-46. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of bilateral plantar fasciitis and bilateral pes planus, the preponderance of the evidence is against finding that these disabilities began during active service, or are otherwise related to an in-service injury, event, or disease. The appellant has established “veteran” status based on his periods of active duty service from November 1990 to May 1991 and from June to September 2002, and also established “veteran” status for the period of active duty for training (ACDUTRA) from January to May 1988 based on the grant of service connection for pseudofolliculitis barbae incurred during the same period of ACDUTRA. See Hill v. McDonald, 28 Vet. App. 243 (2016). The Veteran’s appeal is based on the periods of active duty and the period of ACDUTRA listed above. The law and regulations pertaining to undiagnosed illness are applicable in this case. See 38 C.F.R. § 3.317. However, since plantar fasciitis is a disease with a clear etiology and diagnosis, service connection for bilateral plantar fasciitis based on the presumption concerning undiagnosed illnesses is not warranted in this case. Id. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s bilateral foot disability including plantar fasciitis preexisted his active military service, since moderate asymptomatic pes planus (flat feet) was noted on his entrance examination in October 1987. Plantar fasciitis was not noted on this examination, but in a concurrent report of medical history, the Veteran reported a history of foot trouble, and the reviewing examiner noted that the Veteran reported having heel pain after running for a long time. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). Service treatment records do not show an increase in the severity of the preexisting bilateral pes planus, and do not reflect complaints, treatment, or diagnosis of bilateral plantar fasciitis. Other than the October 1987 enlistment medical examination and report of medical history, service treatment records are negative for any foot symptoms or abnormalities, and the Veteran denied foot trouble in reports of medical history dated in September 1991, August 1996 and August 2001. He did not report any foot problems in post-deployment health assessments in September 2003 and December 2006. A January 1997 VA primary care note reflects that the Veteran had no medical problems and no complaints with regard to his feet. A physical examination was normal, and no abnormalities of the feet were noted. After his last period of active service, on VA examination in November 2009, although the Veteran complained of several other medical problems, he did not complain of any foot symptoms and a foot disability was not diagnosed. As the most competent and credible evidence of record does not show an increase in the severity of bilateral pes planus during service the presumption of aggravation does not attach. As such, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required. Wagner, 370 F.3d at 1096. Because the Veteran’s preexisting bilateral pes planus was not aggravated by military service, entitlement to service connection must be denied. With regard to bilateral plantar fasciitis, the October 2020 VA examiner stated that although there are symptoms reported at service entry consistent with early plantar fasciitis, there is no diagnosis given, and therefore it cannot be stated that bilateral plantar fasciitis clearly and unmistakably existed prior to service. The Board finds that the most competent and credible evidence of record shows that the Veteran’s bilateral plantar fasciitis did not manifest during the relevant periods of active military service. Therefore, the presumption of soundness does not attach. See Gilbert, 26 Vet. App. 48, 52 (2012). Instead, the Board will adjudicate the appeal as one for direct service connection. VA and private treatment records show the Veteran was not diagnosed with plantar fasciitis until April 2013, over a decade after his separation from his last period of active service. Private medical records from Kershaw Health dated in April 2013 reflect treatment for complaints of right foot and right great toe pain, with diagnoses of gout and plantar fasciitis. In April 2013, an examination of the feet was normal, with normal range of motion and no evidence of injury; there was tenderness of the soft tissues on the plantar aspect of the feet. The diagnostic impression was plantar fasciitis. A September 2018 VA outpatient treatment record reflects that the Veteran complained of chronic foot pain that was worse in the morning. The diagnostic assessment was likely plantar fasciitis. On VA examination in October 2018, the examiner diagnosed bilateral flat foot (pes planus) and bilateral plantar fasciitis. The Veteran reported that his bilateral foot pain started three and a half years ago, and he had pain when he first got up in the morning, but it subsided once he started moving around. The VA examiner opined that the Veteran’s bilateral plantar fasciitis is not at least as likely as not related to an in-service injury, event, or disease. The rationale was that foot pain characteristic of plantar fasciitis was present on April 1, 2013, and in December 2014 there was documentation of ongoing foot pain, but the examiner was unable to locate the onset of bilateral foot pain while in military service, or injury to either foot. The Board previously remanded this case for a supplemental VA medical opinion as to this claim with consideration of the fact that moderate pes planus was noted on the Veteran's enlistment medical examination in October 1987. The October 2020 VA examiner opined that the Veteran’s bilateral plantar fasciitis is not at least as likely as not related to an in-service injury, event, or disease, including prolonged wearing of combat boots. The rationale was that the Veteran had moderate pes planus and signs and symptoms consistent with early plantar fasciitis in both feet at the service entrance examination, specifically his reports of heel pain after running, and he had short periods of active duty service. The examiner opined that the nature and etiology of the Veteran's plantar fasciitis is a natural progression of the pes planus condition to plantar fasciitis. Based on the medical records reviewed and medical knowledge, the claimed condition of plantar fasciitis was less likely than not incurred in or caused by in service injury, events, or illness, including wearing boots in active service. The examiner indicated that pes planus or flat feet is a postural deformity relating to the collapse or flattening of the medial longitudinal arch, which can also be referred to as hyperpronation or overpronation. Flat feet progress slowly as a person increases his feet’s exposure to weight-bearing activities. The two most common progressions from flat feet are foot deformities and bony stress injuries. In the active person, hyperpronation alters the load transference up through the leg and can cause stress responses such as shin splints and in the worst case, stress fractures. At the opposite end, the bones through the foot are also exposed to altered loads potentially causing a bunion. Plantar fasciitis can develop as a result of the altered arch biomechanics and increasing midfoot pronation. The plantar fascia is loaded excessively while trying to compensate for this continuing loss of arch integrity. Plantar fasciitis is characterized as sharp heel pain first thing in the morning or after being on the feet, and is common in runners, with pes planus, obesity, and increased stress on the fascia. The examiner noted that in the Veteran's periodic examinations in September 1991, August 1996 and August 2001, the Veteran denied foot trouble, and on VA examination in October 2018, the Veteran reported that his foot pain started three and a half years ago. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Taken together, the VA opinions of record establish that the Veteran’s bilateral foot disability, to include bilateral plantar fasciitis, is not at least as likely as not related to an in-service injury, event, or disease, including prolonged wearing of combat boots. The Veteran believes his bilateral foot disability, including bilateral plantar fasciitis, is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the October 2018 and October 2020 VA examinations. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.