Citation Nr: 21007989 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 11-25 117 DATE: February 11, 2021 ORDER Service connection for bilateral plantar fasciitis is denied. Service connection for bilateral metatarsalgia is denied. REMANDED Whether the withholding of compensation for training days for fiscal year 2008 was proper is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral plantar fasciitis did not have onset due to disease or injury sustained during his period of service. 2. The Veteran’s bilateral metatarsalgia did not have onset due to disease or injury sustained during his period of service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for bilateral metatarsalgia have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1987 to February 1988, February 2003 to May 2003 and from July 2006 to November 2007 with additional service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision issued by RO. In a May 2017 decision, the Board denied service connection for bilateral plantar fasciitis and bilateral metatarsalgia. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In August 2018, the Court granted the parties Joint Motion for Partial Remand (JMPR) and vacated the Board’s May 2017 decision that denied service connection for bilateral plantar fasciitis and bilateral metatarsalgia and remanded the issues to the Board for further development and consideration. The parties agreed that the Board failed to address relevant evidence of record. The parties instructed the Board to address any relevant evidence and determine whether VA examination opinion addressing the etiology of the bilateral plantar fasciitis and bilateral metatarsalgia was warranted. The Board remanded these claims on appeal in March 2019 and August 2020 for VA examination to address the nature and etiology of the claimed bilateral plantar fasciitis and bilateral metatarsalgia. The January 2020 VA examination and August 2020 examination addendum addressed the etiology of the bilateral plantar fasciitis and bilateral metatarsalgia. Accordingly, the requested development has been completed and the case has been returned to the Board for appellate disposition. Service Connection 1. Entitlement to service connection for bilateral plantar fasciitis and bilateral metatarsalgia 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The February 1987 service enlistment examination documents diagnoses of mild asymptomatic flat feet, old laceration scar on the dorsum right foot and ingrown toenail of the right big toe with mild erythema. A July 1998 service treatment record documents treatment for right foot nail pain. A July 1999 service treatment record documents treatment for ingrown toenail on the left foot. The October 2007 Report of Medical Assessment reflects, in pertinent part, edema in the feet. There was no diagnosis of plantar fasciitis or metatarsalgia. A September 2008 VA treatment record documents assessment of plantar fasciitis. A subsequent September 2008 VA treatment record documents diagnosis of plantar fascial fibromatosis. A May 2009 VA treatment record reflects the Veteran’s complaint of bilateral foot pain. The examiner noted a history of metatarsalgia and plantar fasciitis in January 2009. An October 2009 physical therapy progress note documents treatment for bilateral feet metatarsalgia and plantar fasciitis. The January 2020 Report of Foot Conditions examination documents diagnoses of bilateral plantar fasciitis and bilateral metatarsalgia. The Veteran reported a long history of bilateral feet pain unrelated to traumas. He complained of daily, shock like pain in the plantar areas of both feet. The physician opined that the bilateral plantar fasciitis and bilateral metatarsalgia were less likely than not incurred in or caused by an in-service injury, event or illness. The physician explained that the disabilities were first manifest in 2009, years after service. In the August 2009 VA examination addendum, the physician opined that the bilateral plantar fasciitis and bilateral metatarsalgia were less likely than not incurred in or caused by an in-service injury, event or illness. The physician explained there was no evidence (no treatment, no radiological studies) of the disabilities in service or a year thereafter. The physician noted that records from 2008 were reviewed but the disorders were not diagnosed by then. The physician reported that the Veteran was evaluated for complaints of bilateral feet edema and numbness but explained those symptoms were not compatible with either plantar fasciitis or metatarsalgia. Rather, those symptoms were related to systemic conditions such as diabetes and/or circulatory compromise, but they were unrelated to any skeletal condition such as metatarsalgia and/or fasciitis. The physician reiterated that the plantar fasciitis and metatarsalgia were diagnosed in 2009, approximately two years after service discharge. Though the Veteran has bilateral plantar fasciitis and bilateral metatarsalgia, the preponderance of the evidence is against a finding of a linkage between the onset of the bilateral plantar fasciitis and bilateral metatarsalgia and his military service. Rather, the evidence shows that the plantar fasciitis and metatarsalgia were diagnosed in 2009, approximately two years after service discharge. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Further, the physician explained that complaints of bilateral feet edema and numbness were symptoms indicative of systemic conditions such as diabetes and/or circulatory compromise and were unrelated to any skeletal condition such as metatarsalgia and/or fasciitis. In addition, though a September 2008 VA treatment record documents assessment of plantar fasciitis, a subsequent September 2008 VA treatment record documents that the diagnosis was plantar fascial fibromatosis, a different disorder. Again, the physician in January and August 2020 explained that the plantar fasciitis and metatarsalgia were first manifest in 2009, years after service. There has been no evidence submitted indicating bilateral plantar fasciitis and bilateral metatarsalgia had onset due to disease or injury sustained during a period of service. These conclusions are probative as they are based on facts presented by both the service treatment records and the assertions made by the Veteran at the time of the VA examinations. There is also no competent or credible evidence or opinion that suggests that there exists a medical relationship, or nexus, between any current bilateral plantar fasciitis and bilateral metatarsalgia and a period of the Veteran’s service. The Veteran is competent to report instances of foot pain, edema and numbness during service, but he is not competent to link his bilateral plantar fasciitis or bilateral metatarsalgia to a period of service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran’s death). The Veteran is a lay person and is not competent to establish that his current bilateral plantar fasciitis and bilateral metatarsalgia onset because of disease or injury sustained during a period of service. The question regarding the etiology of such disabilities is a complex medical issue that cannot be addressed by a layperson. For these reasons, his allegations are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claims of entitlement to service connection bilateral plantar fasciitis and bilateral metatarsalgia must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Whether the withholding of compensation for training days for fiscal year 2008 was proper is remanded. The matter is REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: A Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances Form (VA Form 21-8951) documents that The Defense Manpower Data Center (DMDC) records indicated that the Veteran had performed 114 training days in fiscal year 2008. However, the Veteran indicated the number of training days on the front of the form was incorrect and that he actually performed 52 training days in 2008. The Veteran elected to waive military pay for the training days in order to retain his VA compensation. The Form purportedly was signed by the Veteran and his unit commander in April 2009. Another Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances Form (VA Form 21-8951) documents that the DMDC records indicated that the Veteran had performed 114 training days in fiscal year 2008. However, the Veteran indicated the number of training days on the front of the form was incorrect and that he actually performed 84 training days in 2008. The Veteran elected to waive VA benefits for the days indicated in order to retain his training pay. The form was signed by the Veteran in December 2009. 2. The May 2017 Board remand instructed the RO to contact the Defense Finance and Accounting Service (DFAS) or any other appropriate source and request the Veteran’s military pay records for fiscal year 2008 to determine the Veteran’s paid and unpaid Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA) in the National Guard during fiscal year 2008. To date such development has not been completed. 3. Accordingly, the RO must contact DFAS and request the Veteran’s military pay records for fiscal year 2008 to determine the amount of training days he performed in fiscal year 2008 (114 as documented by DMDC, 52 as reported by the Veteran in April 2009 or 84 as reported by the Veteran in December 2009. All records requests and responses received must be documented in the claims file and any pertinent follow-up must be undertaken. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.