Citation Nr: 21009960 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 12-17 774A DATE: February 23, 2021 ORDER Entitlement to service connection for a right foot disability is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT 1. Resolving reasonable doubt favor of the Veteran, the Veteran has a right foot disability that is etiologically related to his active service. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for a right foot disability have been met. 38 U.S.C. §§ 1110, 1111; 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1963 to April 1965. These matters come before the Board of Veterans’ Appeals (Board) on appeal of an April 2013 rating decision by the Department of Veteran’s Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, denying the reopening of entitlement to service connection for a bilateral foot condition. The Veteran timely filed a notice of disagreement in June 2013, only as to the issue of service connection for a right foot disability. In March 2015, the RO issued a statement of the case (SOC). In April 2015, the Veteran perfected his substantive appeal and requested a video conference before a Veterans Law Judge (VLJ). In October 2017, the Veteran testified at a local hearing before the undersigned VLJ. A transcript of that proceeding is associated with the record. In a December 2017 decision, the Board reopened the Veteran’s claim for entitlement to service connection for a right foot disability, and remanded the claim, along with a claim for entitlement to a TDIU, for additional development. In June 2020, the Board again remanded the claims for additional development. Unfortunately, for the reasons discussed below, that development was not satisfactorily completed. Stegall v. West, 11 Vet. App. 268 (1998). Regarding the Veteran’s claim for service connection for a right foot disability, however, a remand for a new VA examination and/or opinion is not necessary because the evidence of record is sufficient to grant the Veteran’s claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. The Veteran’s appeal has been advanced on the docket. 38 U.S.C. § 7107(a)(2) (2012); 38C.F.R. §20.900(c) (2019). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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 or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that an injury or disease resulting in a disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303. Service connection for a recognized chronic disease can be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. The Board also recognizes that pain alone can constitute a disability for VA purposes when such pain amounts to functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a right foot disability, to include functional loss due to pain, is granted. The Veteran is seeking service connection for a right foot disability. Specifically, he contends that his current disabilities, which includes pain in the right foot, are related to his military occupational specialty (MOS) as a paratrooper. See, e.g., January 2021 Appellate Br; see also February 2020 VA Examination. Turning to the evidence of record, the Veteran has submitted multiple statements in support of his pain causing functional loss and continued symptomology since service. In a November 2009 statement, the Veteran reported that it was a disgrace to go to sick call. He did not report pain in service to avoid being shunned. An April 2013 Buddy statement asserts that the Veteran had no feet complaints entering service but complained of pain after service. He reported that the Veteran had told him about his hard parachute landings on his feet, how it had hurt him, and how he could not complain so as to not get kicked out. See also October 2017 Board Hearing. In a May 2013 Statement, the Veteran described multiple hard landings on his feet that left him dizzy and disoriented but that he couldn’t complain so as to not be discharged. He did eventually go to the infirmary and was told he had plantar warts. He would shave them regularly from 1967 until 1979, during which time he also had operations. Furthermore, at that time he was unable to maintain a steady employment due to his pain. In his June 2013 NOD, the Veteran reported that he did not complain of any kind of pain in service to not be discharged. In addition, in his April 2015 VA Form 9 the Veteran asserted that his condition has been deteriorating since his service. Furthermore, he asserted that when he was released from service there was no true physical evaluation done on due to the rush to discharge soldiers during the Vietnam war. See also October 2017 Board Hearing. Review of the record also reveals multiple VA examinations. In a June 1978 VA examination, the Veteran reported that his feet hurt. The examiner noted collected hard skin and that the Veteran’s pain was especially bad with cold weather. In a March 2015 VHA clarification, the examiner asserted that the Veteran’s right foot disability is less likely than not due to service based on the Veteran’s lack of treatment in his service treatment records (STRs). In a February 2020 VA examination, the Veteran reported pain in his right foot. He stated that during active duty he had several plantar warts of the right foot and left foot and that he had pain in the soles of the feet due to the plantar warts. He had a surgical resection of the plantar warts around 1971 and in 1974 or 1975. After the second operative procedure the plantar warts recurred in the soles of both feet. He stated that he had improvement of this condition in 1979, and were much better by July 1980. The veteran also reported that since then he has had bilateral foot pain due to plantar warts that are periodically are shaved by him. Furthermore, he believed his current pain in the soles of both feet that are in the area of the distal heel/proximal arch is are due to this condition. On examination, the Veteran was found to have pain that contributed to functional loss, to include disturbance of locomotion and interference with standing. The February 2020 examiner opined that the Veteran’s mild hallux valgus was asymptomatic and developed long after service and therefore was not directly related to service. He also opined that the cause of the Veteran’s current symptoms is mild tenderness in the soles of the feet and plantar fasciitis that are most likely due to the Veteran’s plantar calcaneal spurs and pes planus. As these symptoms occurred 48 years after service that are not likely due to the Veteran’s MOS as they would have been detected many years ago. In addition, the examiner noted that the Veteran’s medical records show that although he experiences plantar warts during service, they are unrelated to the Veteran’s current conditions. In September 2020, the February 2020 examiner rendered a new medical opinion. See June 2020 Board Decision. The examiner repeated the findings and opinions of his February 2020 opinion. In pertinent part, the examiner again asserted the Veteran’s conditions, which are causing plantar fasciitis of the right foot, are the cause of the veteran’s current right foot symptoms. This occurred 48 years after discharge from active duty. If it was due to the airborne training and assignment to the parachute regiment, the condition would have been present and detected many years ago. Concerning a relationship with service, the examiner asserted that although running and marching during service could have caused plantar fasciitis, here it is not noted on the Veteran’s separation examination. Regarding whether pain attributed to functional loss, the September 2020 examiner explained that “The [June 2020 Board decision] implies that an individual’s assertions of pain and of a claimed condition being due to active duty are more than adequate for service connection for C&P purposes. If evidence from STRs/medical records is unnecessary, then the entire C&P process, which seeks evidence and strives for accuracy, is unnecessary.” Based on the foregoing evidence and the entirety of the record, the Board finds that service connection is warranted for a right foot disability. Specifically, regarding the first element of service connection, in a February 2020 VA examination, the Veteran was found to have a flat foot, plantar fasciitis, plantar calcaneal spur, bunions, first MPT joints. The Veteran also experiences pain in his right foot and such pain has been found to cause functional loss. As such the Veteran has a current disability and the first element of service connection has been met. With respect to the second element, in-service occurrence, the Board notes that the Veteran’s service-treatment records (STR) are silent for flat foot, plantar fasciitis, plantar calcaneal spur, and bunion complaints. However, as noted above, in a June 1978 VA examination, the Veteran reported that his feet hurt from collected hard skin and was especially bad with cold weather. In addition, in multiple statements throughout the record, the Veteran has testified that he started experiencing pain in his feet while in service but did not report it for fear of being discharged and losing his pay. Furthermore, he has contended that his separation examination was rushed due to the conditions of the Vietnam war. See October 2017 Board Hearing; May 2013 Statement; April 2013 Buddy Statement; November 2009 Statement. In this regard, the Board acknowledges that the Veteran has been consistent in his statements that his right foot symptoms, to include pain, began in service and have continued since. The Board notes that symptoms of pain are capable of lay observation. As noted above, a veteran or other lay person is competent to report that which he perceives through his symptoms, which in this case, would pain in his right foot during service. Layno v. Brown, 6 Vet. App. 465 (1994). Since the Veteran has been consistent with his statements, including during his sworn testimony, the Board finds his statements as to his right foot symptoms, to include pain, credible and of significant probative value. Accordingly, the Board finds that the second element for establishing service connection has been met. Therefore, the Veteran’s claim turns on whether there is a nexus between the Veteran’s inservice injury/disability and his current right foot disability. As noted above, multiple VA opinions have been issued regarding the Veteran’s right foot condition. These opinions, however, are inadequate for adjudication and are therefore of little, if any probative value. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For example, the March 2015, February 2020 VA opinion, and September 2020 VA opinion, do not address the Veteran’s lay assertions regarding experiencing pain in his right foot since service that that causes functional loss. Furthermore, the rationales are all based on the lack of treatment records with no discussion of the Veteran’s assertions that if he reported pain in service he would have been shunned or discharged. Not having a record of complaints during service does not necessarily mean that the Veteran was not experiencing such symptoms, especially in light of the Veteran’s in-service rigorous training as a paratrooper. A medical opinion based solely on the absence of documentation in the record is inadequate, if it does not take into account the Veteran’s reports of symptoms and history. Dalton v. Peake, 21 Vet. App. 23 (2007); see February 2020 VA Examination; October 2017 Hearing Tr.; June 2013 NOD; May 2013 Correspondence. Accordingly, the Board affording these opinions little, if any probative value. The Board also notes that throughout the record, the Veteran has consistently and competently asserted that he experienced right foot pain in service and has experienced right foot pain since service. As noted above, he is competent to report symptoms, such as pain. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Furthermore, these assertions are supported by the medical record and there is no evidence in the record to suggest that the Veteran’s statements are not credible. See, e.g., June 2013 NOD; May 2013 Statement; May 2013 VA Treatment Record; November 2009 Buddy Statement. Accordingly, the lay evidence provided by the Veteran, which indicates a continuity of symptomology, is unquestionably credible evidence. In this respect, the Board finds the Veteran’s own reports of experiencing ongoing pain during and since service to be of significant probative value. See Savage v. Gober, 10 Vet. App. at 496 (“symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.”) Based on the foregoing, to include the VA opinions of little probative value and the Veteran’s credible assertions of continuity of symptomology during and since service of significant value, the Board finds that the evidence is at least in relative equipoise as to whether there the Veteran’s right foot disability is related to service. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the third element of service connection, a relation between the Veteran’s current disability and service has been met. Gilbert, supra. Accordingly, the Veteran has a currently diagnosed right foot disability and a positive nexus to his inservice right foot pain has been established. The three elements necessary for service connection have therefore been met and the claim for service connection for a right foot disability is granted. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. The Veteran is seeking entitlement to a TDIU. Specifically, he contends that his disabilities are worse than reflected by his current disability ratings and a TDIU is warranted. Review of the record shows that the Veteran has physical limitations due to his service-connected disabilities, but it does not include information on his education and work history, to include the date that he last had substantially gainful employment. See, e.g., July 2012 VA Form 9 (indicating Veteran is a Pastor); see also October 2017 Board Hearing (indicating Veteran retired in 1988 and his currently a minister). In addition, as noted above, in the June 2020 the Board remanded this issue for additional development. Pursuant to the remand instructions, on June 18, 2020, the AOJ mailed to the Veteran and his representative a subsequent development letter requesting whether the Veteran wished to continue his claim and to submit a VA Form 21-4192. In January 2021, the Veteran’s representative submitted an appellate brief addressing this issue. In the brief the representative argued that the Veteran may need assistance completing the form. Based on the foregoing, the Board finds that a remand is warranted for further development. On remand, the Veteran should be asked to complete a TDIU claim form or submit information on his education and work history. The Board wishes to emphasize that, “[t]he duty to assist in the development and adjudication of a claim is not a one way street.” Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). “If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Provide the Veteran with VA Form 21-8940 and request he provide details regarding his employment and educational history. The Veteran’s representative and AOJ should reach out to the Veteran to help him in providing the required information. 2. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claim on appeal. If any claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, Associate 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.