Citation Nr: 21007109 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-30 635 DATE: February 8, 2021 ORDER Service connection for a bilateral foot disability, including metatarsalgia and plantar fasciitis, is granted. REMANDED Service connection for a back disability is remanded. Service connection for a neck disability is remanded. FINDING OF FACT A bilateral foot disability was incurred in or is otherwise etiologically related to the Veteran’s military service, including injuries sustained during basic training. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability, including metatarsalgia and plantar fasciitis, are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1977 to February 1978. As an initial matter, the Board notes that there has been some confusion as to the proper characterization of the Veteran’s spine appeal. In March 2011, he submitted a claim seeking service connection for “spinal disc injury.” Service connection for a spinal disc injury was denied in a December 2012 rating decision. Although a July 2014 Statement of the Case classified the claim as such, the accompanying analysis discusses the Veteran’s history of lower back symptoms. In August 2016, the Veteran offered testimony during a travel board hearing; a transcript of this proceeding has been associated with the record. At that time, the Veteran testified as to his lower back symptoms. However, contemporaneous medical evidence also discussed the Veteran’s history of various neck disorders. In July 2018, the Board denied the Veteran’s appeals, including service connection for “residuals of a spinal disc injury.” The Board’s analysis addressed the Veteran’s history of both lower back and neck symptoms. Following a Joint Motion for Remand (JMR), the Court of Appeals for Veterans Claims (Court) vacated the Board’s denials and remanded the matters for further development in June 2019. The parties’ JMR discussed only the Veteran’s history of neck symptoms and related disorders. The Veteran was subsequently informed that the Veterans Law Judge (VLJ) who presided over his August 2016 hearing was no longer with the Board. He offered new testimony during an October 2020 virtual hearing before the undersigned VLJ; a transcript of this proceeding is also of record. At that time, the matter on appeal was classified as entitlement to service connection for a neck disability, as reflected by the Veteran’s testimony. The appeals have since been returned to the Board for further adjudication. Upon the above history, it is found that the Veteran has reason to believe that his “spinal disc injury” appeal encompasses both cervical and lumbar spine injuries. See 38 C.F.R. § 20.202; see also Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that an issue can be on appeal if VA has implicitly or explicitly treated it as on appeal and the appellant might have reason to believe it was on appeal). To avoid any future confusion, the Board has bifurcated and expanded these appeals herein. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection The Veteran now continues his appeal seeking direct service connection for a bilateral foot disability. The Board will limit its analysis accordingly. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Here, there is competent evidence of a current disability. Notably, the Veteran underwent a private evaluation in October 2016, at which time he was diagnosed with bilateral metatarsalgia and plantar fasciitis. These diagnoses were corroborated by a separate private examiner in July 2019, and symptoms of such are noted throughout the Veteran’s VA treatment records. Thus, the first element of direct service connection has been met. As to the second element, the Veteran contends that his bilateral foot disabilities had their onset during service, when he was issued boots which were several sizes too big. He contends that the use of these boots during basic training resulted in significant bilateral foot problems, including blisters, bleeding, and pain. See, e.g., August 2016 and October 2020 hearing transcripts. Notably, the Veteran’s service treatment records (STRs) are silent for reports of bilateral foot disabilities or the treatment thereof. However, the Veteran has not indicated that he sought in-service treatment for his symptoms at any time. Critically, he was also not afforded an exit examination, as it was found that the reporting on his April 1977 entrance examination remained intact for his separation six months later. As such, the Veteran was deprived of the opportunity to document any potential foot disabilities which may have arisen during service. Moreover, a veteran is generally competent to report that which he perceives through his senses, including events capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran’s testimony regarding the in-service injuries is well-documented and consistent throughout the record, to include during both Board hearings and in available medical records. Importantly, there is no evidence of record which tends to contradict the Veteran’s reporting in this instance. Thus, in affording the Veteran the benefit of the doubt, it is found that the second element of direct service connection has also been met. Accordingly, this appeal may be granted upon competent evidence of a nexus between his current disability and his in-service injuries. In this respect, the October 2016 private examiner documented the Veteran’s reports of bilateral foot pain which developed during basic training. He continued to experience chronic pain, and currently required treatment for metatarsalgia and plantar fasciitis, to include with special shoe inserts/orthotics. As such, it was deemed more likely than not that the Veteran’s current foot problems were service-related. In July 2019, a separate private examiner corroborated these earlier findings, noting that he did “agree with [the October 2016] report on [the Veteran’s] . . . bilateral foot injury.” The accompanying assessment provided an overview of the October 2016 report, as based upon the Veteran’s medical records and current complaints. The above evaluations are probative evidence in support of this appeal. Notably, these evaluations were conducted by medical experts and afforded due consideration to the Veteran’s military and medical histories, to include of the reported in-service injuries and chronicity of symptoms. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the “factually accurate, fully articulated, sound reasoning for the conclusion”). Both physicians possess the requisite expertise to render competent opinions regarding the etiology of the Veteran’s bilateral foot disability, and had sufficient facts and data on which to base their conclusions. Compellingly, there are no opinions of record which tend to contradict these findings. In this respect, the Board acknowledges that the Veteran has not yet undergone VA examination for the claimed disability. Although remand for such a purpose could be accomplished, the Board declines to remand for potentially negative evidence at this time. Further, during the October 2020 hearing, the Veteran indicated that he was attempting to secure an addendum opinion to the July 2019 private assessment. Such an opinion has not yet been provided to VA. However, the Board finds that there is sufficiently probative evidence upon which to grant this appeal, such that remand to obtain any potentially outstanding addendum opinion would weigh against the Veteran’s interests. The Board also acknowledges that its July 2018 denial of this appeal was based, in part, upon a finding that the October 2016 examiner’s conclusion that the Veteran pursued treatment for the claimed disability was “simply not corroborated in the record.” However, the Board is not bound by its prior findings in this case. Rather, the law instructs that a de novo review of the evidence be conducted contemporaneous to this decision. In undertaking such a review, and with due consideration as to the Veteran’s competent and credible testimony and multiple evaluations indicative of a nexus in this case, entitlement to service connection is hereby established. Thus, the preponderance of the evidence weighs in favor of the appeal, the benefit of the doubt rule is applicable, and direct service connection for a bilateral foot disability, including metatarsalgia and plantar fasciitis, is hereby granted. REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeals. As noted herein, the Veteran is now pursuing service connection for both lower back and neck disorders. During the pendency of this appeal, he has offered testimony which is potentially relevant to both claims. Given the variability in the Veteran’s pursuit of these appeals, the Board finds that a VA examination is warranted to obtain clarification as to the nature and etiology of any relevant disorders and in-service injuries. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following action: Obtain an opinion addressing the questions below.  If the reviewing examiner determines that the opinions requested may not be offered without first examining the Veteran, then consider whether a telehealth interview may be appropriate.  Schedule an in-person examination only if deemed necessary to answer the questions below.  The claims file and a copy of this remand must be made available for review, and the examination reports must reflect that review of the claims file occurred.  In particular, the examiner should offer opinions as to the following:  (a.) Identify all back and neck disorders demonstrated by the Veteran during the pendency of this appeal, including pain productive of functional impairment. If a diagnosis of arthritis is rendered, the examiner must identify whether this condition onset within one year of military separation. (b.) For each disorder, opine as to whether it is at least as likely as not (50 percent probability or more) that it began in service, was caused by service, or is otherwise related to service? Here, the examiner must explicitly address the Veteran’s testimony of in-service symptoms (to include as related to basic training) and continuous symptoms since that time. The examiner must also address the private opinions offered in October 2016 and July 2019. In formulating the opinion, the examiner is advised that the term “at least as likely as not” does not mean “within the realm of possibility.”  Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.   [CONTINUED ON NEXT PAGE] A complete rationale should be provided for all opinions or conclusions expressed.  It should be noted that the Veteran is competent to attest to observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.  Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.