Citation Nr: 21011822 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-38 601A DATE: March 2, 2021 ORDER Service connection for bilateral acute plantar fasciitis is denied. Service connection for broken left hand, residuals is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the bilateral acute plantar fasciitis began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence of record is against finding that the Veteran has had broken left hand, residuals at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral acute plantar fasciitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for broken left hand, residuals are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to July 1985, July 1999 to April 2000, January 10, 2002 to January 28, 2002, October 2002 to March 2003, March 2003 to October 2003, and June 2007 to January 2008, with additional service in the U.S. Navy Reserve, including periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for bilateral acute plantar fasciitis and broken left hand, residuals. In May 2013, VA received the Veteran’s Notice of Disagreement (NOD). In October 2014, the RO issued a Statement of the Case (SOC). In November 2014, VA received the Veteran’s VA Form 9 appeal to the Board. In May 2018 the Board remanded the case for further development and adjudicative action. At the outset, the following service connection issues were previously on appeal: (1) lumbosacral strain with degenerative arthritis of the thoracolumbar spine; (2) right knee strain status post arthroscopic repair of the right ACL; (3) right eye, pterygium right nasal conjunctiva and cornea with pinguecula (claimed as metal in right eye, residuals); (4) right foot onychomycosis (claimed as loss of right big toenail due to fungus infection); and (5) right lower extremity radiculopathy (sciatic) (claimed as numbness). However, in a September 2020 rating decision, the RO granted service connection for the above issues. As this represents a full grant of the benefits sought on appeal, these issues are no longer in appellate status or before the Board. Service Connection 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). Active service includes periods of ACDUTRA when service connection may be granted for disabilities resulting from a disease or injury incurred in or aggravated while performing ACDUTRA. 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6(a), (c). Active service also includes periods of INACDUTRA when service connection may be granted for disabilities resulting from an injury incurred in or aggravated while performing INACDUTRA. 38 U.S.C. § 101(23), (24); 38 C.F.R. § 3.6(a), (d). 1. Service connection for bilateral acute plantar fasciitis. The Veteran contends that he incurred bilateral acute plantar fasciitis during service. Specifically, he asserts that he has had problems with bilateral plantar fasciitis since serving in Iraq. See May 2013 NOD. 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 a diagnosis of bilateral acute plantar fasciitis, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Although an August 2002 chiropractic clinic note reveals diagnoses of bilateral acute plantar fasciitis and a spring ligament injury, there is no evidence that the injury occurred or was aggravated during a period of active service, ACDUTRA, or INACDUTRA. See chiropractic clinic note dated August 20, 2002. In this regard, the chiropractic clinic note is dated outside a period of active duty and is not accompanied by a line of duty determination showing that a foot injury occurred during a period of ACDUTRA or INACDUTRA. Thereafter, the Veteran consistently denied foot trouble. While he reported numbness or tingling in the hands or feet following a period of deployment to Iraq and Kuwait ending in August 2003, a doctor’s note in the report commented only that the Veteran likely had a herniated disc at the L5 vertebrae. See service treatment records (STRs) dated January 8, 2003. Subsequent STRs and post-service treatment records are negative for complaints, objective indications of, or treatment for plantar fasciitis. The Veteran received a VA examination for his bilateral acute plantar fasciitis in July 2019. The July 2019 VA examiner opined that the Veteran’s bilateral acute plantar fasciitis is at least as likely as not related to an in-service injury, event, or disease. In support, the examiner reasoned that the August 2002 chiropractic clinic showed a diagnosis of bilateral acute plantar fasciitis and the Veteran reported symptoms of plantar fasciitis from service. However, the opinion is not probative because the preponderance of the evidence weighs against finding that bilateral acute plantar fasciitis was incurred or aggravated during active duty or a period of ACDUTRA or INACDUTRA. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Additionally, while the Veteran is competent to report that he has experienced symptoms of plantar fasciitis since service, his reports are inconsistent with other evidence in the record. Specifically, the Veteran consistently denied foot problems during the remainder of service and post-service treatment records provide no complaints, objective indications of, or treatment for plantar fasciitis. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). While the Veteran believes his bilateral acute plantar fasciitis is related to service, the preponderance of the evidence weighs against finding that the Veteran’s bilateral acute plantar fasciitis had onset or was aggravated during a period of active duty, ACDUTRA, or INACDUTRA. In conclusion, because the preponderance of the evidence shows that the Veteran’s bilateral acute plantar fasciitis is not related to service, the benefit of the doubt doctrine is inapplicable in this case. Accordingly, service connection for bilateral acute plantar fasciitis is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). 2. Service connection for broken left hand, residuals. The Veteran contends that he currently experiences residuals from a broken left hand incurred during service. 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 the Veteran does not currently experience residuals from a broken left hand and has not had symptoms during the pendency of the appeal. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). April 1999 STRs show that the Veteran suffered a dislocated finger after a locker fell onto his left hand. Development by the RO revealed that the injury occurred during a period of INACDUTRA. See identification materials uploaded on May 6, 2019. Post-service treatment records are negative for complaints, objective indications of, or treatment for residuals of a hand injury. The Veteran received a VA examination for his broken left hand, residuals in July 2019. During the examination, the Veteran reported “dull achy pain” when using the hand, which increased in severity during the winter, decreased grip strength resulting in “dropping things at times,” and “occasional swelling and stiffness.” However, the July 2019 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of pain, swelling, and stiffness, he did not have a diagnosis related to the hand. There was no pain on use, decreased strength, or swelling of the left hand. The Veteran denied flare-ups and functional loss over time. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Id. at 1367-69. In this case, the July 2019 examiner performed active and passive range of motion testing on weight-bearing and non-weightbearing and concluded that the Veteran had “no limits in the functional ability of the hand.” While the Veteran is competent to report lay observable symptoms such as pain, stiffness, and swelling, these reports are inconsistent with the evidence of record. Buchanan, 451 at 1336-37. Furthermore, although the Veteran may, in fact, experience pain, stiffness, and swelling of his left hand, the objective medical evidence of record outweighs the Veteran’s assertion that he currently experiences residuals from his in-service broken hand amounting to a diagnosable disability or functional impairment of earning capacity. In conclusion, because the preponderance of the evidence shows that the Veteran does not have a current diagnosis or functional impairment of his left hand, the benefit of the doubt doctrine is inapplicable. Accordingly, service connection for broken left hand, residuals is not warranted. See Gilbert, 1 Vet. App. at 49; see also Ortiz, 274 F.3d at 1364. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.