Citation Nr: 21024908 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 13-35 421 DATE: April 26, 2021 ORDER Entitlement to service connection for bilateral plantar fasciitis is granted. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a skin disability, other than skin cancer, (claimed as jungle rot) is remanded. Entitlement to service connection for skin cancer is remanded. FINDING OF FACT The Veteran’s bilateral plantar fasciitis was not caused by, and is not otherwise related to, any event or injury incurred during his period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to August 1971. This case comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing in December 2015 before the undersigned. A copy of the transcript is of record. The issue of entitlement to service connection for bilateral plantar fasciitis was remanded by the Board for additional development in July 2016. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives regarding this issue was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to service connection for bilateral plantar fasciitis The Veteran contends that he has current bilateral plantar fasciitis due to his period of active service. During his 2015 hearing, the Veteran stated that he believed he developed plantar fasciitis due to going back in the field after his in-service hospitalization. “I was told by the doctor that once you went through that constantly and the pounding on your feet that you probably lost the arches in your feet and it caused the plantar fascitis.” Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry: (1) determining the competency of the source; (2) determining credibility, or worthiness of belief, and (3) weighing its probative value. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). The Board notes that the Veteran is competent to testify as to his perceived symptoms, such as his complaints of pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (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 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may also be awarded if a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). Unfortunately, plantar fasciitis is not a chronic condition pursuant to 38 C.F.R. § 3.309; as such, entitlement to service connection cannot be established based solely upon continuity of symptomatology. See 38 C.F.R. §§ 3.303 (b); 3.309 (a). Nevertheless, when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. Combee v. Brown, 34 F. 3d. 1039 (Fed. Cir. 1994). As such, the Board will also consider whether service connection is warranted for plantar fasciitis on a direct basis. Unfortunately, the Board finds that the probative evidence of record weighs against a finding that the Veteran’s bilateral plantar fasciitis was incurred in, or otherwise due to, the Veteran’s period of active service, including his exposure to herbicide agents. The Board finds probative the opinion of the April 2019 VA examiner that it is less likely than not that the Veteran’s bilateral plantar fasciitis was due to any in-service event or injury. The examiner noted the Veteran’s lay statements regarding the rigors of his active duty service; however, the examiner noted that the Veteran did not seek medical treatment in service for bilateral plantar fasciitis and did not seek medical treatment for approximately twenty years after service for bilateral plantar fasciitis. The examiner opined that the 20-year gap was indicative that other life events than active duty service resulted in the development of his bilateral plantar fasciitis. The Board finds that the examiner’s opinion considered all of the pertinent evidence of record, to include the lay statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board notes that the 2019 examiner’s opinion is supported by the Veteran’s private treatment records from October 2009. The Veteran’s physician reported that the Veteran a history of substantial heel pain that had been “going on about three weeks.” The physician provided a diagnosis of plantar fasciitis. This medical record indicates that the Veteran’s current condition had onset in 2009, many years after separation from active service, and does not support the Veteran’s March 2010 report that his condition had onset in February 1970. Further, the Veteran’s separation examination in July 1971 reports both of the Veteran’s feet to be normal. To the extent that the Veteran reported during his 2015 hearing that a physician informed him that his in-service duties caused his plantar fascitis, the Board finds this report to be of less probative value than the opinion provided by the 2019 VA examiner. It is unclear what information that this opinion was based upon or that the physician had access to the Veteran’s full medical history, including the treatment records from the October 2009 physician indicating onset of plantar fasciitis in 2009, approximately 30 years after separation from active service. A medical expert’s opinion must be based on all relevant facts, Nieves-Rodriguez, 22 Vet. App. at 303, and such facts must be accurate, Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an expert’s opinion based on inaccurate or incomplete facts is of no value). As it is unclear what information this opinion was based upon, the Board finds that the opinion is of little probative value. To the extent that the Veteran, and his wife, have opined that the Veteran’s activities due to service “could have directly impacted” his bilateral plantar fasciitis, the Board finds that the Veteran and his wife are not competent to opine as to the etiology of a bilateral foot condition many years after in-service trauma. See March 2010 Correspondence; see also March 2016 Correspondence from R.H.D. The Board finds that such opinions are of a complex medical nature and beyond the scope of lay diagnosis. See Jandreau, at 1376-77. In sum, the Board finds that the preponderance of the evidence weights against a finding that the Veteran’s bilateral plantar fasciitis was caused, or otherwise due to, any incident of his active service. See 38 C.F.R. § 3.303. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Although the Board regrets the additional delay, the remainder of the Veteran’s claims must be remanded again before it can adjudicate these issues on the merits. 1. Entitlement to service connection for a right shoulder disability is remanded. The Board notes that medical opinions were obtained in January 2017, April 2019, and June 2019 regarding the etiology of the Veteran’s right shoulder disability. Unfortunately, the Board finds that these opinions with regard to the Veteran’s right shoulder are inadequate to resolve the issue on appeal. The Board notes that the Veteran has reported trauma to his right shoulder during combat in Vietnam from firing his weapon. See October 2013 VA Form 9. The Veteran’s records show that his Military Occupational Specialty was light weapons infantryman. These reports are presumed to be credible and were not addressed by the medical opinions of record. 38 U.S.C.§ 1154 (b). As such, the Board finds that a new medical opinion must be obtained prior to adjudication of the Veteran’s claim. 2. Entitlement to service connection for a skin disability, other than skin cancer, (claimed as jungle rot) is remanded. Medical opinions were also obtained in January 2017 and April 2019 regarding the etiology of the Veteran’s skin condition (claimed as jungle rot.) (The Board has separated the Veteran’s claim for skin cancer and a skin condition other than skin cancer for clarity purposes.) The April 2019 examination provided a diagnosis of dermatitis. Unfortunately, the Board finds that these opinions are inadequate to resolve the issue on appeal. The January 2017 examiner opined that the Veteran’s diagnoses were less likely than not due to exposure to herbicide agents as the Veteran was not exposed to herbicide agents. The Board notes that this exposure is presumed and been conceded based upon his service in Vietnam; as such, this medical opinion is deemed inadequate. The 2019 examiner stated that “none of Veteran’s currently diagnosed skin conditions are presumptive conditions for Vietnam Service and STR is silent for complaints of his skin conditions. Due to this information, Veteran’s dermatitis is less likely than not incurred in or caused by the claimed in-service event.” As previously noted by the Board in its prior remand in 2016, the Veteran has reported “episodic” skin problems since service in Vietnam and his dermatologist reported scaling of the skin in 2006. Moreover, the Veteran and his wife have reported scarring of the Veteran’s legs due to scratching since his period of service. The Veteran and his wife are deemed competent to report scars on the Veteran’s legs and the Veteran is competent to report symptoms of itchiness and areas of pigmentated skin. As the examiner discounted the Veteran’s competent lay statements, the Board finds that a new medical opinion must be obtained. 3. Entitlement to service connection for skin cancer is remanded. Medical opinions were also obtained in January 2017 and April 2019 regarding the etiology of the Veteran’s skin cancer. The April 2019 examiner has indicated that the Veteran’s conditions are likely due to exposure to the sun; however, in its prior remand in 2016 the examiner was asked to opine whether the Veteran’s exposure to the sun during service. Such an opinion has not been provided; as such, the Board finds that an addendum opinion should be obtained. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology the Veteran’s current right shoulder disability. The claims file must be made available to the examiner. The examiner is specifically asked to provide the following opinion: Whether the Veteran’s current right shoulder disability was at least as likely as not (a 50 percent or greater probability) caused, or aggravated by, any injury incurred during the Veteran’s period of active service. The examiner is asked to specifically discuss the Veteran’s report of trauma to his right shoulder from firing his weapon in his right (dominant) arm during combat. These statements are to be presumed credible, even without contemporaneous medical evidence. A complete rationale for all opinions must be provided. In providing the requested opinions, the examiner must address the Veteran’s lay assertions. Lay statements of record cannot be disregarded solely due to lack of contemporaneous medical evidence. 2. Schedule the Veteran for a VA examination to determine the etiology the Veteran’s current dermatitis. The claims file must be made available to the examiner. The examiner is specifically asked to provide the following opinion: Whether the Veteran’s current dermatitis was at least as likely as not (a 50 percent or greater probability) incurred in, or otherwise caused by, the Veteran’s active service. The examiner is asked to specifically discuss the reports of the Veteran and his wife of itchy skin on his legs since his period of service. See June 2010 VA examination; see Statement received March 25, 2016. A complete rationale for all opinions must be provided. In providing the requested opinions, the examiner must address the Veteran’s lay assertions. Lay statements of record cannot be disregarded solely due to lack of contemporaneous medical evidence. 3. Undertake appropriate efforts to obtain an addendum opinion from the April 2019 examiner (or another appropriate clinician, if necessary). The examiner must address the following: Whether the Veteran’s basal and squamous cell skin cancers were at least as likely as not (a 50 percent or greater probability) caused by any the Veteran’s exposure to the sun during service. (Continued on the next page)   A complete rationale for any opinions rendered must be provided. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.M. Johnson, 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.