Citation Nr: 21012644 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-07 942 DATE: March 4, 2021 ORDER Service connection for bilateral foot disorder to include plantar fasciitis is denied. Service connection for low back disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the appellant’s current diagnosis of bilateral plantar fasciitis is not related to an a disease or injury incurred or aggravated during active duty for training (ACDUTRA) in line of duty or an injury incurred or aggravated during inactive duty for training (INACDUTRA) in line of duty while in the United States Naval Reserves. 2. The preponderance of the evidence shows that the appellant’s current symptom of low back pain is not related to an a disease or injury incurred or aggravated during ACDUTRA in line of duty or an injury that was incurred or aggravated during INACDUTRA in line of duty while in the United States Naval Reserves. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral foot disorder to include plantar fasciitis are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for service connection for low back disorder are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served in the United States Naval Reserves from October 1997 to February 2005 with various 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 an October 2013 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for bilateral plantar fasciitis and a lower back disorder. The appellant’s notice of disagreement (NOD) was received in November 2013. The RO issued a statement of the case (SOC) in November 2016. The appellant’s VA Form 9, substantive appeal to the Board, was received in January 2017. In November 2019, the appellant testified at a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. Service Connection Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed.Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Veteran status is the first element required for a claim for disability benefits. D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). The term “veteran” means a person who served in the active military, naval, or air service and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2). The term “active military, naval, or air service” includes (A) active duty; (B) any period of active duty for training during which the individual concerned was disabled or dies from a disease or injury incurred or aggravated in line of duty; (C) and any period of inactive duty for training during which the individual concerned was disabled or dies (i) from injury incurred or aggravated in line of duty; or (ii) from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.” The term “active duty” includes full-time duty in the Armed Forces, other than active duty for training (ACDUTRA). 38 U.S.C. § 101(21). The term Armed Forces means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof. 38 U.S.C. § 101(10). ACDUTRA includes full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any state. Inactive duty for training (INACDUTRA) generally means duty (other than full-time duty) prescribed for Reserves, and duty (other than full-time duty) performed by a member of the National Guard of any state. 38 U.S.C. § 101(21), (22), (23), (24), (27); 38 C.F.R. § 3.6 (a), (c), (d). Thus, while service connection may be granted for any injury or disease that had its onset during active duty or during ACDUTRA if such was incurred or aggravated in the line of duty, current disabilities must be shown to be related only to injuries, and not diseases, sustained in INACDUTRA for service connected to be granted. When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). In the absence of such evidence, the period of ACDUTRA would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “veteran” by virtue of ACDUTRA service alone. Id. For purposes of 38 U.S.C. § 101(24), the term “injury” refers to the results of an external trauma rather than a degenerative process. See generally VAOPGCPREC 4-2002 (May 14, 2002); VAOPGCPREC 86-90 (July 18, 1990); VAOPGCPREC 8-2001 (Feb. 26, 2001). Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless “veteran” status is attained during those periods. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). 1. Entitlement to service connection for bilateral foot disorder to include plantar fasciitis. The appellant contends that he has bilateral plantar fasciitis caused by or aggravated from marching and wearing boots during ACDUTRA and INACDUTRA while he was in the United States Naval Reserves. The question for the Board is whether the appellant has a current disability that is related to a disease or injury incurred or aggravated during ACDUTRA in line of duty or an injury incurred or aggravated during INACDUTRA in line of duty while in the United States Naval Reserves. While the appellant has a current diagnosis of bilateral plantar fasciitis, the medical evidence show that the appellant was not first diagnosed with bilateral plantar fasciitis during ACDUTRA or INACDUTRA and the preponderance of the evidence weighs against finding that the appellant’s diagnosis of bilateral plantar fasciitis is related to a disease or injury incurred or aggravated during ACDUTRA in line of duty or an injury incurred or aggravated during INACDUTRA in line of duty. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Turning to the evidence of record, private treatment records dated in February 2013 and November 2019 show that his bilateral heel and arch pain was diagnosed as bilateral plantar fasciitis. Thus, the appellant has a current diagnosis of the claimed disability. Nevertheless, the medical evidence does not show that the appellant’s current bilateral pes planus is caused or aggravated by a disease or injury during ACDUTRA or an injury during INACDUTRA. In this regard, the appellant’s reserve treatment records document that the appellant first sought treatment for heel pain was on April 16, 2003. He reported that heel pain in both feet that has been of long duration. The pain is very acute in the morning and post rest. He also noticed it is more severe when wear his military boots over the weekend. He was diagnosed with plantar fasciitis. A May 4, 2003 note from the appellant’s private physician stated that the appellant was unable to run. A May 14, 2003 reserve treatment record notes that the appellant complained of continued pain in both heels. He was diagnosed with bilateral shin splints. A June 16, 2003 treatment record documents that the appellant has bilateral heel pain. A June 22, 2003 Report of Medical Examination documents that the appellant had mild tenderness of the plantar aspect of the heel, bilaterally. On June 22, 2003, the appellant was placed in a temporarily not physically qualified (TNPQ) status for plantar fasciitis. It was noted that he could not run or rake physical fitness test. A July 30, 2003 treatment record documents that the appellant reported that he continued to have bilateral heel and arch pain. He was unable to run due to plantar fasciitis. The appellant stated that he has had plantar fasciitis for three years. A September 29, 2003 reserve treatment record reveals that the appellant sought treatment for bilateral heel pain. In May 2004, the appellant submitted a letter to the Reserves concerning his feet. He stated that during each drill weekend he suffered from throbbing pain to the heel and arch area of his feet. The problem occurs due to him wearing military boots. The pain comes with stiffness that made it hard for him to walk after sitting or lying down for even a brief period of time. A May 17, 2004 reserve record notes that the appellant currently received care from a civilian podiatrist for heel pain. A May 2005 reserve treatment record stated that his plantar fasciitis started on drill weekend when he was wearing boots and the drill boots make the condition worse. A June 18, 2005 Report of Medical History reveals that the appellant reported experiencing foot trouble. The appellant stated that plantar fasciitis occurred while on droll and drill boots made the condition worse. He was unable to perform stretches. The physician noted that he was unable to determine if the problem was service connected or if chronic in nature. It was questionable as the condition was made worse by standing. A review of the appellant’s reserve personnel record reflects that the appellant was not on ACDUTRA or INACDUTRA when the appellant sought treatment for his bilateral heel and arch pain. Furthermore, a March 2006 Findings of the Physical Evaluation Board Proceedings determined that the appellant was unfit and not physically qualified to continue reserve status due to plantar fasciitis and lower back pain. It was also found that these disabilities were not a proximate result of performing military duty. The appellant asserts that marching and wearing the required military boots during ACDUTRA and INACDUTRA caused or aggravated his bilateral plantar fasciitis. The appellant’s assertion appears to be based on the theory that his plantar fasciitis was caused by repetitive strain to the ligament of the sole of his foot (plantar fascia) and is similar to the degenerative or wear and tear that may occur slowly over time. The appellant has not alleged a specific incident, injury, or disease that occurred during ACDUTRA or a specific incident or injury that occurred during INACDUTRA. The medical evidence also does not support that a specific injury to his feet occurred during a period of ACDUTRA or INACDUTRA, a disease that may have caused bilateral plantar fasciitis during a period of ACDUTRA, or was first diagnosed with bilateral plantar fasciitis during a period of ACDUTRA or INACDUTRA. While the appellant is competent to report pain and stiffness in his heels and arches of this feet, the question of whether these symptoms are due to a disease or injury relates to an internal medical process that extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (lay person competent to identify varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes 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”). Thus, the appellant’s own assertions as to the etiology of his symptoms of bilateral plantar fasciitis are not competent. While the appellant has not been afforded a VA examination regarding this claim, there is no adequate evidence indicating that the appellant had a disease or injury of the feet during ACDUTRA or an injury of the feet during INACDUTRA and there is no competent evidence indicating any relationship between his symptoms and his service. Accordingly, even the low threshold under McLendon has not been met here and VA’s duty to provide a VA examination has not been triggered. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c), 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). In conclusion, the preponderance of the evidence weighs against a finding that the appellant was first diagnosed with bilateral plantar fasciitis during ACDUTRA or INACDUTRA or that the appellant’s diagnosis of bilateral plantar fasciitis is related to a disease or injury incurred or aggravated during ACDUTRA in line of duty or an injury incurred or aggravated during INACDUTRA in line of duty. Thus, entitlement to service connection for bilateral plantar fasciitis is not warranted. 2. Entitlement to service connection for low back disorder. The appellant contends that he has current low back disorder that is caused or aggravated by marching and wearing boots during ACDUTRA and INACDUTRA while he was in the United States Naval Reserves. The question for the Board is whether the appellant has a current disability that is related to a disease or injury incurred during ACDUTRA or an injury that was incurred during INACDUTRA. The Board concludes that the appellant does not have a current diagnosis of low back disability at any time during the pendency of the claim or recent to the filing of the claim that is related to a disease or injury incurred during ACDUTRA or an injury that was incurred during INACDUTRA. See 38 C.F.R. § 3.303; Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this regard, private treatment records do not show that the appellant was diagnosed with a low back or lumbar spine disorder. A July 2019 private chiropractor treatment record documents that the appellant had segmental and somatic dysfunction of the cervical region, cervicalgia, pain in thoracic spine, and contracture muscle. The medical record shows that the appellant did not complain of low back problems or receive treatment for the low back or lumbar spine area. Nonetheless, the appellant contends that he experiences low back pain. “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.” Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). However, the medical and lay evidence of record does not reflect that the low back pain results in any functional impairment of earning capacity. Furthermore, there is no evidence the appellant’s lay statements of low back pain are related to a disease or injury incurred or aggravated during ACDUTRA in line of duty or an injury that was incurred or aggravated during INACDUTRA in line of duty. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1362 (Fed. Cir. 2001) (holding a claim based on “pain alone” fails “when there is no sufficient factual showing that the pain derives from an in-service disease or injury.”). Specifically, the appellant’s reserve treatment records reveal that the appellant did not complain of, receive treatment for, or was diagnosed with a low back disorder during a period of ACDUTRA or INACDUTRA. A December 2004 Determination of Physical Findings Memo shows that the appellant had been unable to be involved with his unit due to his current medical diagnosis of low back pain. The appellant denied experiencing, at that time or in the past recurrent back pain or any back problem in Report of Medical History Forms dated in June 2003 and June 2005. June 2003 and June 2005 Report of Medical Examinations reflects that the appellant’s spine and other musculoskeletal was normal. A March 2006 Findings of the Physical Evaluation Board Proceedings determined that the appellant was unfit and not physically qualified to continue reserve status due to plantar fasciitis and lower back pain. It was also found that these disabilities were not a proximate result of perming military duty. Thus, the above evidence and analysis reflects that the appellant’s symptoms of low back pain are not due to disease or injury during ACDUTRA in line of duty or an injury during INACDUTRA in line of duty. Moreover, although the appellant is competent to report his low back symptoms, the question of whether these symptoms are due to a disease or injury relates to an internal medical process that extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (lay person competent to identify varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes 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”). Thus, the appellant’s own assertions as to the etiology of his low back symptoms are not competent. While the appellant has not been afforded a VA examination regarding this claim, there is no adequate evidence indicating that the appellant had a disease or injury of the low back during ACDUTRA or an injury of the low back during INACDUTRA and there is no evidence indicating any relationship between his symptoms of the low back and his service. Accordingly, even the low threshold under McLendon has not been met here and VA’s duty to provide a VA examination has not been triggered. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c), 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). (Continued on the next page)   In conclusion, the preponderance of the evidence shows that the appellant does not have a current diagnosis of a low back disorder. Congress specifically limits entitlement for service-connected disease or injury to cases where an in-service disease or injury has resulted in a disability. Accordingly, the appellant’s claim of entitlement to service connection for a low back disorder is not warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Berry, 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.