Citation Nr: 21012451 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-03 156 DATE: March 4, 2021 ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for right heel pain. Service connection for plantar fasciitis of the right foot, claimed as right heel pain, is granted. Throughout the appeal, a separate 10 percent rating for left lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine is granted. Throughout the appeal prior to June 29, 2020, a 10 percent rating for right lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine is granted. REMANDED Entitlement to a rating higher than 10 percent for left lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine is remanded. Entitlement to a rating higher than 20 percent for degenerative disc disease, lumbar spine is remanded. Entitlement to a rating higher than 20 percent for right lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine since June 29, 2020 is remanded. FINDINGS OF FACT 1. The April 2003 rating decision denying entitlement to service connection for right heel pain was not appealed. 2. Evidence received since the RO’s decision in April 2003 is not redundant or cumulative evidence previously considered and it relates to unestablished facts necessary to substantiate the claims for service connection for right heel pain. 3. A disability manifested by right heel pain, diagnosed as plantar fasciitis, had onset in service. 4. Prior to June 29, 2020, the Veteran’s right lower extremity radiculopathy manifested with mild incomplete paralysis. 5. Throughout the appeal period, the Veteran has had radiculopathy of the left lower extremity secondary to his service-connected back disorder that manifests with mild incomplete paralysis. CONCLUSIONS OF LAW 1. New and material evidence has been received since the issuance of a final April 2003 rating decision, thus the criteria for reopening the claim for service connection for right heel pain are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for right heel pain have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. The criteria for a separate compensable rating of 10 percent for left lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.124a Diagnostic Code 8520. 4. The criteria for entitlement to a 10 percent rating prior to June 29, 2020 for right lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.124a Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran served on active duty from January 1993 to January 1996, including service in the Persian Gulf from August 1995 to November 1995. 1. New and material evidence has been found to reopen a claim of entitlement to service connection for right heel pain. The RO initially denied the claims for entitlement to service connection for right heel pain in an unappealed April 2003 rating decision. Thereafter, in March 2016, the Veteran filed a claim to reopen the previously denied claim for service connection, which was denied in the May 2016 rating decision currently on appeal. The Board finds that new and material evidence has been submitted for the previously denied claim of entitlement to service connection for right heel pain and the claim is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). See January 2021 Board Hearing Transcript. Service Connection The Veteran asserts that service connection for service connection is warranted for right heel pain, which has been recurrent since service and that has been diagnosed as right foot plantar fasciitis. Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, service. See 38 U.S.C. § 1114; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (1) the existence of a present 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 or aggravated during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303 (d). A lay person is competent to report on the onset and reoccurrence 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 considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gilbert v. Derwinski,1 Vet. App. 49, 57 (1990). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). 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. 2. Entitlement to service connection for right heel pain. The Board finds that service connection for right heel pain is warranted. The Veteran reported experiencing right heel pain during the appeal period. See January 2001 Board Hearing Transcript. The Veteran is competent to describe symptoms observable to his senses; as such, he is also competent to diagnose right heel pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2003). The Board finds him credible, as his statements have been detailed and consistent. Additionally, a March 2001 VA examination of the left heel also documents right heel pain. Therefore, the Board determines that the first element of service connection is satisfied. The Veteran’s medical records indicate that he was treated for chronic right heel pain while on active duty. See November 1994 Medical Treatment Record. Therefore, in-service injury is conceded. The Veteran competently and credibly reports that his right heel pain began during active duty service and has been recurrent since that time. See Layno v. Brown, 6 Vet. App. 465 (1994); see also January 2021 Board Hearing Transcript. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Saunders v. Wilke, 886 F. 3d 1356 (Fed. Cir. 2018). The Board notes the March 2001 negative nexus VA medical opinion. The VA examiner explained that while the Veteran was treated for right heel pain while on active duty, there was no abnormality of the bone shown, obvious trauma or discoloration. The examiner found slight tenderness over the right calcaneus bone but did not find a causal relationship between the Veteran’s current right heel pain and his inservice treatment. The Board notes, however, that the VA examiner’s opinion lacked sufficient rationale in that while it documented inservice injury, it did not address the Veteran’s subsequent lay testimony that he had continual right heel pain since service. See January 2021 Board Hearing Transcript. Additionally, the March 2001 VA examiner opined that the Veteran’s current heel condition could have a causal relationship to military service. The examiner, however, did not use the correct legal standard of “as least as likely as not” in determining whether the Veteran’s had a right heel disability due to service. The Veteran presented sworn testimony that he has had right heel pain that has caused functional limitation continuously since he left active duty service. See January 2021 Board Hearing Transcript. The Veteran is competent to give reports of right heel pain with continued symptoms since service and the Board finds his account credible. In addition, the evidence shows that he has been diagnosed as having plantar fasciitis of the right foot. Here, because the competent and credible evidence shows that the onset of the Veteran’s right heel pain was in service, which has been diagnosed as plantar fasciitis of the right foot, service connection for right foot plantar fasciitis is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that “the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty”). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous....” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. 3. Entitlement to a separate 10 percent rating for left lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine. Note (1) of the General Rating Formula for Diseases and Injuries of the Spine provides that associated objective neurologic abnormalities should be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a. Under DC 8520, a rating of 10 percent is warranted for left lower extremity radiculopathy. At his January 2021 Board hearing, the Veteran testified that he experiences numbness and pain throughout his left leg. The Veteran is competent to describe symptoms observable to his senses; as such, he is also competent to diagnose left lower extremity numbness and pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds him credible, as his statements were detailed and consistent. Therefore, a separate rating of 10 percent is warranted for radiculopathy of the left lower extremity, associated with the Veteran’s lumbar spine disability. The issue of entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine is remanded and is discussed in the Remand section below. 4. Entitlement to a 10 percent rating prior to June 29, 2020 for right lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine. Under DC 8520, a rating of 10 percent is warranted for mild incomplete paralysis of the femoral nerve. At his January 2021 Board hearing, the Veteran testified that he experiences numbness and pain throughout his right leg. The Veteran is competent to describe symptoms observable to his senses; as such, he is also competent to diagnose left lower extremity numbness and pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds him credible, as his statements were detailed and consistent. Therefore, a rating of 10 percent is warranted prior to June 29, 2020 for radiculopathy of the right lower extremity, associated with the Veteran’s lumbar spine disability. The issue of entitlement to a rating in excess of 20 percent since June 29, 2020 for right lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine is remanded and is discussed in the Remand section below. REASONS FOR REMAND 5. Entitlement to a rating higher than 10 percent for left lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine. 6. Entitlement to a rating higher than 20 percent for degenerative disc disease, lumbar spine is remanded. 7. Entitlement to a rating higher than 20 percent since June 29, 2020 for right lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine is remanded. The Veteran’s left and right lower extremity radiculopathies and degenerative disc disease of the lumbar spine were last evaluated in October 2020. Since that time, the Veteran has reported that each of these disabilities have worsened. See January 2021 Board Hearing. As such, the Board finds that new VA examinations are necessary to evaluate the severity of these disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) as to the current severity of his service-connected degenerative disc disease and associated right and left lower extremity radiculopathies. The determination of whether an in-person examination should be left to the discretion of the examiner. The examiner should identify all lumbar spine and impairment of the lower extremities found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint (in the case of the right shoulder). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Booker 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.