Citation Nr: 21024376 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-00 111 DATE: April 22, 2021 ORDER Entitlement to service connection for foot disabilities, to include bilateral plantar fasciitis, bilateral pes cavus, and right foot osteoarthritis, is denied. FINDING OF FACT Foot disabilities did not manifest in active duty service or in Army National Guard active duty for training or within one year of separation. Foot disabilities are not otherwise attributable to active duty service or Army National Guard active duty for training. CONCLUSION OF LAW The criteria for entitlement to service connection for foot disabilities have not been met. 38 U.S.C. §§ 1101, 1105, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107; 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1984 to April 1985, February 2001 to October 2001, and December 2004 to May 2006, with service in Southwest Asia. He also served with the Army National Guard from November 1990 to April 1991. Most recently, in April 2019, the Board remanded the case for additional evidentiary development. The Board finds that that there has been substantially substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998), Active Duty and Active Duty for Training For VA purposes, the term “active military, naval, or air service” includes active duty, any period of active duty for training during which the Veteran was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C.§ 101(24)(A)(B). Service Connection The Veteran asserts that foot disabilities, to include bilateral plantar fasciitis, bilateral pes cavus, and right foot osteoarthritis, were incurred in, aggravated by, or otherwise attributable to, service. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Certain chronic diseases, including osteoarthritis, will be presumed related to service if they were shown as chronic in service (or within a presumptive period) and there are subsequent manifestations of the same chronic diseases; or if they manifested to a compensable degree within a presumptive period following separation from service (in this case, one year); or if they were noted in service, with continuity of symptomatology since service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Evidence and Analysis The Board has combed the Veteran’s extensive service treatment records (STRs) for complaints of, treatment for, or any diagnoses of, bilateral foot conditions Upon a January 1991 Reserves report of medical examination, a clinician indicated a normal clinical evaluation of the Veteran’s feet. In a March 1991 Reserves report of medical history, the Veteran indicated that he had not had and did not have foot problems or arthritis. In a Reserve emergency room report (ER) of this month, the Veteran sought treatment for a basketball injury. The Veteran complained of left leg, left ankle, left foot discomfort. A clinician noted swelling. The clinician recommended an ace bandage, icing, and an analgesic every 4 hours. A radiological consultation report of this month indicated an inversion injury of the left ankle; however, the radiological report is not of record. And, in an April 1991 Reserves STR, the Veteran complained of foot pain. A military clinician indicated that this pain was a symptom of the Veteran’s left ankle inversion injury. The Veteran complained of shin problems in August 1995. During this month, the Veteran indicated that he did not have foot problems. In a January 2001 periodic report of medical history, the Veteran again conveyed that he did not have any problems with his feet. And, upon a January 2001 periodic report of medical examination, a military clinician indicated that an evaluation of the Veteran’s feet was normal. In an undated STR (presumably close to January 2001), a military clinician indicated that the Veteran presented as obese with a complaint of bilateral foot pain. The Veteran conveyed that this pain was worse with “the first step” in the morning and when he rose after a period of sitting. These notations occur within the context of the Veteran’s past right knee surgery and information concerning x-ray evidence of knee degenerative joint disease (DJD). Upon a July 2002 consultation, a military clinician indicated that the Veteran presented with a mild antalgic gait. This military clinician associated the gait with the Veteran’s right knee arthritis. In a November 2004 assessment, a military clinician reported that the Veteran had a chronic knee problem; however, this clinician noted that the Veteran indicated that he was able to perform the duties of his military occupational specialty (MOS) of infantryman. In a December 2004 report of health assessment, the Veteran indicated that his knee problems, back problems, blood pressure (elevated reading), circulation, and shoulder pain have worsened. The Veteran did not indicate that he had any on-going problems with his feet. A military clinician mentioned in a September 2005 STR that the Veteran presented with an altered gait which was secondary to knee pain and knee DJD A military clinician reported that the Veteran had traumatic arthritis of the right knee in December 2005. The Veteran reported that he did not have orthopedic problems in a March 2006 post-deployment report. Also, the Veteran submitted a sworn statement this month. In pertinent part, the Veteran indicated that in August 2005 he stepped into a hole and fell to the ground, post-deployment. The Veteran noted that he sought treatment the following day and since the fall his condition has worsened. This worn statement follows a statement of medical examination and duty status which provides information concerning exacerbation of symptoms of right gonarthrosis (“knee arthrosis”). In the Veteran’s April 2006 separation report of medical examination, a military clinician indicated that upon valuation the Veteran had a heavy callous on his right foot, noting that there was no bleeding. And, the Veteran’s medical record from the Joint Base San Antonio Treatment Facility which chronically delineates complaints, treatment, and diagnoses from September 27, 1984 to May 1, 2007 does not contain records which address bilateral plantar fasciitis, bilateral pes cavus, or right foot osteoarthritis 2007 VA treatment records show current medical problems of S1 radiculopathy; hypertension; osteoarthritis of the knees; gouty arthritis; gastroesophageal reflux disease; environmental allergies; anemia; and obesity. These records note a prescription of urea cream to treat the feet topically. A clinician provided a diabetic foot examination, noting that the Veteran was not diabetic (and the diagnosis should be eliminated from the system). The Veteran commanded good pedal pulses and had two right-foot calluses without drainage. In a March 2009 VA treatment record, a clinician noted that the Veteran endorsed intermittent foot pain. A clinician indicated that the Veteran had severe ankle arthralgia with plantar fasciitis A review of 2009 records from C., a private physical therapy (PT) and sports medicine facility, disclose that the Veteran was discharged from PT to treat neck, back, knee, and foot pain. The records show that the Veteran engaged in PT from August 2009 to November 2009. In a June 2009 VA outpatient treatment record, a podiatrist indicated that the Veteran endorsed chronic foot and ankle pain. The Veteran reported that a corticosteroid injection to the heel and ankle ameliorated his symptoms. However, the Veteran asserted that both arches and heels were now bothering him. This podiatrist provided diagnoses of plantar fasciitis and instep arthralgia. The podiatrist reported that the Veteran was waiting for custom orthotics. November 2009 contracted-VA treatment at N., a private pain treatment center, shows that the Veteran sought consultations to treat his low back pain and arthritis. Upon a VA podiatry consultation in December 2009, a VA podiatrist indicated that the Veteran sought follow-up for chronic plantar fasciitis; possible neuritis secondary to back pathology; and traumatic arthropathy in the instep area of the right foot. The podiatrist noted that dorsiflexion night splints were not successful. The podiatrist indicated current diagnoses of traumatic arthropathy with osteoarthritis of the right foot and chronic plantar fasciitis. Upon a March 2010 VA examination, a clinician reviewed the claims file; considered the Veteran’s lay accounts; and conducted an appropriate evaluation. This clinician indicated that the Veteran reported that he incurred plantar fasciitis when he fell into a hole in Iraq in 2005. The Veteran indicated that his foot pain had worsened and was more severe in the morning and with weight bearing. The clinician indicated that x-ray imaging showed a suspect small oval-shaped foreign body within the lateral aspect of the left foot; mild MTP degenerative changes; and additional enthesopathic changes. At this time, the clinician indicated that she was not tasked with providing an etiological opinion Upon a VA podiatry consultation in August 2010, a VA podiatrist indicated a current diagnosis of chronic plantar fasciitis of the right foot. The Veteran reported that orthotic and nights splints did not alleviate pain. In his October 2010 notice of disagreement (NOD), the Veteran wrote that his foot problem began while he was in the war zone. He also reported that he did not have the ability to “run to the doctor” every time his foot bothered him, which explains the paucity of foot complaints in STRs. In March 2012, a VA clinician indicated that she had conducted a telephone interview with the Veteran. The Veteran reported that he did not have foot problems prior to service; as such, the Veteran believes that his foot problems are due to the use of military boots. The Veteran also conveyed that his foot problem worsened when he was in Iraq and had to stand, walk, and run on uneven terrain. Upon contemplation of the totality of evidence, the clinician indicated that the Veteran’s plantar fasciitis was at least as likely as not incurred in or caused by an in-service injury, event, or illness. As a rationale for this positive nexus opinion, the clinician recapitulated the Veteran’s lay accounts and then opined that excessive physical activity can cause plantar fasciitis by causing tearing or inflammation of the fascia ligament. Moreover, upon review of the Veteran’s STRs, the Veteran had no foot complaints upon a physical examination in February 1988; however, in January 2001, the Veteran endorsed foot trouble. And, in April 2006, a military clinician noted an abnormal clinical evaluation of the right foot—namely, heavy callouses. The Board acknowledges this VA clinician’s positive nexus opinion; however, the Board finds this opinion to be conclusory and based upon an inaccurate set of facts. Firstly, the January 2001 military clinician did not indicate an abnormal clinician evaluation of the Veteran’s feet. As already discussed, in an undated STR (presumably close to January 2001), a military clinician reported that the Veteran presented as obese with a complaint of bilateral foot pain. The Veteran conveyed that this pain was worse with “the first step” in the morning and when he rose after a period of sitting. These notations occur within the context of the Veteran’s past right knee surgery and information concerning x-ray evidence of knee DJD. Indeed, the Veteran is competent to report discernable symptoms, such as bilateral foot pain. Jandreau, 492 F. 3d 1372. However, the Veteran lacks the expertise in podiatry or medicine to render a diagnosis—to include “incipient” plantar fasciitis. See 38 C.F.R. § 3.159(a)(1). Consequently, the Board must conclude that this clinician based her opinion on inaccurate facts and premises. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely.”) (citing Reonal). In a June 2014 VA podiatry procedure note, a podiatrist indicated that the Veteran had right foot plantar fasciitis. The podiatrist injected 30 milligrams of Kenalog into the Veteran’s right plantar fascia. The podiatrist noted that the Veteran left the podiatry clinic in stable condition. In November 2014, VA received the Veteran’s Social Security Administration (SSA) medical records. Upon review of the records, SSA’s determination factored “bilateral heel spurs” within the calculus of the Veteran’s overall disability picture. Many of the records associated with the SSA files are duplicates of VA records for a host of disabilities. Upon a September 2015 VA podiatry consultation, the Veteran complained of foot pain. A podiatrist indicated pain on palpation of the plantar medial, plantar central, and distal heel. The podiatrist also indicated there were pes cavus deformities in both feet. And, there were palpable dorsal rear foot osteoarthritic changes. This podiatrist provided an assessment of chronic plantar fasciitis and osteoarthritis of the dorsal rear foot. Treatment planning included corticosteroid injections. X-ray imaging of the feet showed hammertoe deformities in the toes and arthritis. In a January 2016 VA treatment record, a clinician indicated that the pain in the Veteran’s feet had been resolved through a podiatrist’s injection and pending delivery of special shoes. In a March 2017 VA Housebound Status report, the clinician did not mention any limitations attributable to the Veteran’s feet. Upon a July 2017 VA podiatry consultation, the Veteran endorsed foot pain. The podiatrist provided assessments of acquired foot/pes cavus type deformity with associated secondary arthritis and bilateral plantar fasciitis. In addition to past treatments (Kenalog injections and custom shoe inserts), the Veteran received support hose to control edema. The Veteran reported for a VA foot conditions examination in March 2018. A VA clinician assessed the claims file; considered the Veteran’s accounts of his medical history and symptoms; and conducted an appropriate evaluation. The clinician indicated current diagnoses of bilateral acquired pes cavus; bilateral plantar fasciitis; and degenerative arthritis of the feet. The Veteran conveyed that his foot problems began in service—during long marches. The Veteran also conveyed his daily bilateral foot pain has progressed. The clinician indicated that recent x-ray imaging also revealed osteoarthritic changes in the form of dorsal spurring around that talonavicular and other dorsal rear foot joints. The clinician rendered an opinion based upon the totality of evidence, to include findings from the instant examination. The clinician opined that the Veteran’s foot disabilities were less likely than not incurred in or caused by the Veteran’s claimed in-service injuries. As a rationale for this negative nexus opinion, the clinician noted that a review of the Veteran’s STRs shows that the Veteran complained of foot and ankle pain in December 2005 (after a fall), However, the Veteran’s subsequent STRs fail to disclose diagnoses of plantar fasciitis, DJD, or pes cavus. The Veteran’s post-service VA treatment records disclose that the Veteran received diagnoses for the afore-noted foot maladies. As the Board noted in the April 2019 remand, this clinician’s rationale was not wholly adequate in that the clinician failed to determine with any clarity whether the Veteran’s current foot disabilities might have an etiological relationship to the claimed in-service incident of falling into a hole. The Veteran sought several VA podiatry consultations in 2018. A VA podiatrist indicated that that the Veteran endorsed increased bilateral pain which Gabapentin no longer controlled. Otherwise, the podiatrist continued earlier modes of treatment. In February 2019, a clinician indicated that the Veteran reported for initial evaluation at the VA rheumatology clinic. The Veteran complained chiefly about right foot pain. A clinician noted that the plantar surfaces of the Veteran’s feet were tender-to-touch (TTP). The clinician also continued the diagnosis of plantar fasciitis. The Veteran also sought VA podiatry clinic services in 2019. The podiatrist noted that the rheumatology department was also addressing the Veteran foot problems. In January 2021, the Veteran reported for another VA foot conditions examination. A VA clinician assessed the claims file; considered the Veteran’s accounts of his medical history and symptoms; and conducted an appropriate evaluation. The Veteran reported that he experienced pain and swelling and had trouble walking and standing, adding that he suffered from a lack of endurance. The Veteran did not convey his earlier accounts of use of military boots; traversing the uneven terrain in Iraq; or falling into a hole in Iraq as the “genesis” of his current bilateral foot disabilities. The clinician indicated that treatment for bilateral plantar fasciitis consisted if custom orthotics, arch supports, and oxycodone. The clinician reported that the Veteran’s feet are flat; however, there was no evidence of acquired pes cavus. Upon scrutiny of the totality of evidence, including findings from the instant examination, the clinician rendered an opinion. Specifically, the clinician opined that it is not at least as likely as not that the Veteran’s diagnosed foot disabilities and right foot osteoarthritis ase the result of an in-service injury, disability, diagnosis, or are otherwise related to, the Veteran’s service. As an evidence-informed rationale, the clinician first indicated that the Veteran endorsed numbness or tingling in the hands and feet in March 2006, but there was neither clinical follow-up or any clinical information or notations of such. In the Veteran’s April 2006 separation examination report, a military clinician noted a heavy callus on the right foot that did not bleed; however, the clinician did not report any symptoms attributable to plantar fasciitis, pes cavus, or osteoarthritis. The Veteran’s medical records are silent for any type of foot complaint for two years after the Veteran’s separation from service. Only in March 2009 did the Veteran report for a consultation at the VA podiatry clinic; this consultation was positive for plantar fasciitis and pes cavus. In an April 2014 VA podiatry consultation, x-ray imaging disclosed the presence of significant osteoarthritic changes in the form of dorsal spurring around the talonavicular and other dorsal rear foot joints. Consequently, there is insufficient clinical evidence to support that the Veteran’s current bilateral foot disabilities are related, in any way, to military service. The Veteran believes that his bilateral foot disabilities were incurred in, aggravated by, otherwise attributable to, service. The Board recognizes the Veteran’s belief in this etiology. Indeed, the Veteran is competent to report discernable symptoms such as bilateral foot pain. Nevertheless, as a lay person, this Veteran lacks the highly specialized medical and podiatric training to render an etiological opinion as to bilateral plantar fasciitis, bilateral pes cavus, and right foot osteoarthritis. See Jandreau, 492 F. 3d 1372. As such this lay evidence does not constitute competent medical evidence. Neither the Veteran nor his representative have submitted competent medical evidence to support the Veteran’s assertions. See 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F. 3d 1346 (Fed. Cir. 2006); 38 C.F.R. § 3.159(a)(1). Here, the Board also observes that the Veteran’s lay statements concerning “in-service” foot injuries have been inconsistent and inconsistent with other evidence of record. Caluza, 7 Vet. App. 498. At different times throughout the pendency of this appeal and to different clinicians, the Veteran reported in-service foot injuries associated with the use of military boots; associated with traversing the uneven terrain in Iraq; and associated with falling into a hole in Iraq. Notably, the Veteran did not convey any of these accounts to the January 2021 VA clinician. Also, as discussed above, the Veteran submitted a sworn statement in which he indicated that in August 2005 he stepped into a hole and fell to the ground, post-deployment. Indeed, post-deployment is not analogous to service in Iraq, as reported to a VA clinician as early as March 2010. The Veteran’s prevaricating histories diminish the probative weight of the Veteran’s lay accounts considerably. The Board assigns significant probative weight to the January 2021 VA clinician’s report and opinion. This clinical professional assessed the claims file; considered the Veteran’s accounts of his medical history and symptoms; and conducted an appropriate evaluation. Based upon the totality of evidence, this expert rendered a negative nexus opinion suffused with evidence and not conjecture. The clinician’s report fails to locate any competent in-service foot injury; upon separation, a military clinician only noted a heavy callus on the right foot that did not bleed, without any symptoms attributable to plantar fasciitis, pes cavus, or osteoarthritis. And, the evidence discloses that the Veteran first sought VA podiatry care in March 2009—almost three years after separation. Indeed, the evidence of record discloses that the Veteran has current bilateral foot disabilities; however, the record fails to disclose an in-service incurrence, injury, or predicate. Upon the Veteran’s April 2006 separation report of medical examination, the military only reported a heavy callus on the right foot that did not bleed. This clinician did not report any symptoms whatsoever of bilateral plantar fasciitis, bilateral pes cavus, or osteoarthritis of the right foot. Without an in-service incurrence or predicate, a nexus cannot be drawn; without a nexus, direct service connection cannot be established. See Shedden, 381 F. 3d 1163. As the evidence of record discloses that osteoarthritis of the right foot was not diagnosed within one year of separation, the possibility of establishing service connection on a presumptive basis is also foreclosed. See 38 C.F.R. §§ 3.307, 3.309. Consequently, the weight of competent and credible evidence is against the Veteran’s service connection claim; there are no doubts to be resolved. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.