Citation Nr: 21010963 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 16-28 888 DATE: February 26, 2021 ORDER Entitlement to service connection for a bilateral foot condition is denied. REMANDED Entitlement to service connection for a bilateral ankle condition is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s bilateral plantar fasciitis, bilateral calcaneal spurs, and left foot hallux valgus were caused by or incurred in service; the preponderance of the evidence is also against a finding of continuity of symptomatology since service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral foot condition have not been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1979 to April 1986. This case comes on appeal of a February 2015 rating decision. These matters were previously before the Board in March 2019. At that time, in addition to remanding the issues below for further development, the Board also remanded the issues of service connection for a lumbar spine condition, a cervical spine condition, peripheral neuropathy of the right and left lower extremities, and PTSD. Subsequent to the March 2019 decision, in a June 2020 rating decision, the agency of original jurisdiction (AOJ) granted those issues, effective the date of the Veteran’s claim. Thus, those issues are considered granted in full and are no longer before the Board. Entitlement to service connection for a bilateral foot condition Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). For chronic diseases listed in 38 C.F.R. § 3.309(a), including degenerative arthritis, the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Here, the record demonstrates that the Veteran began treatment for complaints related to his bilateral feet in 2007. Thus, there is evidence of a current disability. At primary issue is whether the current disability was caused by or incurred in service. The Veteran has presented two theories of contention regarding the in-service cause of his bilateral foot disabilities. First, the Veteran has asserted that a hard landing during a 1983 parachute jump resulted in long-term effects on his feet. Second, the Veteran injured his left foot in October 1985 when a tank round fell on it, resulting in contusion and swelling on the left lateral side. In a September 2007 letter, the Veteran’s private physician, Dr. R.E.R., opined that the Veteran’s foot conditions—diagnosed as chronic bilateral plantar fasciitis and left foot plantar calcaneal spur—may have originated from his post-service job duties as a postal worker. In a June 2008 letter, another private physician, Dr. F.T. stated that plantar fasciitis was due to service. Neither of these opinions provided medical rationale for the conclusions they reached. Therefore, they were not adequate for adjudications purposes. Accordingly, in light of the fact that the Veteran had not undergone a VA examination for his foot conditions, in March 2019, the Board remanded the claim to afford the Veteran such examination. In January 2020, the Veteran underwent a VA examination. At that time, the examiner reported diagnoses of hallux valgus of the left foot, bilateral plantar fasciitis, and bilateral calcaneal spurs. The examiner relayed the Veteran’s report that his feet issues started in 1985 during his time on active duty. He reported injuring the left foot while exercising and stated that he developed fasciitis from leaning on the right foot. The examiner opined that it was less likely than not that the Veteran’s foot conditions were caused by or incurred in service. The examiner first noted that, while records dated October 1985 documented the left foot injury caused by a tank round falling on his left foot, medical literature did not support the development of plantar fasciitis, calcaneal spurs, or hallux valgus as a result of this injury. Rather, the examiner explained, the diagnosed conditions were related to overuse. Here, the examiner documented that the Veteran’s job as a postal carrier involved overuse of the feet. Thus, given that the Veteran did not complain of the diagnosed conditions until 20 years after service, and in that intervening time worked in an job in which he had overuse of the feet, it was more likely that the conditions were a result of this intervening cause. The Board finds the examiner’s opinion to be supported by adequate medical rationale. The opinion not only identified significant supporting evidence—medical literature going against the Veteran’s theories of entitlement, the amount of time between service and complaints of symptoms, and the Veteran’s occupation—but also explained why such evidence was significant in coming to a conclusion. Thus, the Board also finds this opinion to be more probative than the positive nexus opinion from Dr. F.T., which provided no medical rationale. The Board also notes that there is no other competent evidence of record supporting a finding that the Veteran’s current foot disabilities are causally related to service. The Board acknowledges the Veteran’s statement during examination that his foot pain has continued since the 1985 tank round incident. The Board also notes an August 2014 statement from the Veteran describing a July 1983 hard landing while parachuting in which the Veteran reported hurting his feet and stating that he still feels the pain and swelling often. The Board finds, however, that the Veteran’s more recent statements regarding continuity of symptomatology are contradicted by contemporaneous evidence of record, and are afforded little probative weight. First, the Board notes that at the time of his April 1986 separation examination, the Veteran had no complaints regarding his feet and his feet were found to be in normal condition. Additionally, the Veteran was treated in April 1988 for concerns regarding deep vein thrombosis. At that time, the Veteran was noted to have complaints of pain into his lower legs, but there was no indication of pain into his heels or feet. The first evidence of foot pain is shown in a 1994 VA examination for artery and vein conditions in which the Veteran complained of pain throbbing from his legs into his heels. The Veteran was first treated for foot pain in June 2007, at which time he did complain of chronic pain, but noted that it had mostly become problematic in the prior two years. This evidence suggests that the Veteran’s symptoms were not continuous from his in-service incidents but developed some time after. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). Accordingly, service connection based on continuity of symptomatology for a chronic disability is not warranted. In sum, the preponderance of the evidence is against a finding that bilateral plantar fasciitis, bilateral calcaneal spurs, or left foot hallux valgus were caused by or incurred in service. As the preponderance of the evidence is against this finding, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a bilateral ankle condition is remanded. In its March 2019 decision, the Board noted that the Veteran had filed a timely notice of disagreement with the AOJ’s February 2015 rating decision denying entitlement to service connection for a bilateral ankle condition, however, the AOJ had not issued a statement of the case. Thus, the AOJ’s failure to issue a statement of the case was a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238 (1999). A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Since the Board’s March 2019 remand, the AOJ still has not issued a statement of the case regarding the issue of service connection for a bilateral ankle condition. The Board must therefore remand the issue once again for compliance with the Board’s previous instructions and to afford the Veteran due process. The matters is REMANDED for the following action: Furnish the Veteran with a statement of the case pertaining to the issue of entitlement to service connection for a bilateral ankle condition, in accordance with Manlincon v. West, 12 Vet. App. 238 (1999). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.