Citation Nr: 21027098 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-51 945 DATE: May 4, 2021 ORDER Entitlement to service connection for a foot condition, to include bilateral pes planus and bilateral plantar fasciitis, is granted. REMANDED Entitlement to service connection for a left knee disability, to include a left knee strain, is remanded. Entitlement to service connection for lumbar spine degenerative joint disease is remanded. FINDING OF FACT It is at least as likely as not the Veteran's bilateral plantar fasciitis was incurred during his service owing to aggravation of his pre-existing bilateral pes planus. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for bilateral plantar fasciitis. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1981 to July 1985. This appeal to the Board of Veterans' Appeals (Board) is from a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In support of these claims, the Veteran testified at a videoconference hearing in January 2020 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. In March 2020, the Board remanded these claims back to the RO for further development and consideration including to obtain any outstanding treatment records pertinent to these claims, whether from VA or private facilities, also to ensure all service treatment records (STRs) are in the file, and then for addendum opinions concerning the claimed left knee and low back disabilities and a first-time opinion concerning the claimed bilateral foot disability. The claims for left knee and low back disabilities, however, require even more development, so the Board is again remanding those claims. However, the Board instead is now deciding indeed granting the claim for a bilateral foot disability, particularly owing to plantar fasciitis. Entitlement to service connection for a foot condition, including bilateral pes planus and bilateral plantar fasciitis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection also may be established on a secondary basis for disability that is proximately due to, or the result of, or being aggravated by a service-connected disability. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) indication the current disability was either (a) caused or (b) is being aggravated by the service-connected disability. See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. 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 (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. 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. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his currently diagnosed foot disabilities including especially his plantar fasciitis and pes planus, began while he was in service (specifically, during his basic training). In support of his claim the Veteran submitted podiatry records dated in 2000 showing an ongoing history of foot pain with pes planus and hallux valgus. More recent medical records also indicate a current diagnosis of plantar fasciitis. The Veteran credibly testified during his January 2020 hearing before this Board that he began experiencing foot pain during basic training from wearing boots. Since, however, there was uncertainty over just what foot disorders the Veteran still has and whether any is attributable to his military service, the Board remanded this claim in March 2020 for medical comment concerning this posited correlation between his service and this claimed disability irrespective of specific diagnosis. But, as specifically concerning bilateral pes planus (flat feet), the examiner would need to clarify whether it is a "disease" versus "defect" since that, in turn, would govern the method of analysis is deciding whether there is the required attribution to the Veteran's service. To this end, the Veteran subsequently underwent this needed VA examination in September 2020. He reported developing bilateral foot pain while in boot camp and said it has progressively worsened ever since. He added that wearing closed toe shoes is painful and that, in 2000, he was seen by a podiatrist. He reported daily foot pain that varies in intensity and that is worsened by prolonged standing. The examiner diagnosed bilateral pes planus, hallux valgus, and plantar fasciitis. The examiner opined that it is at least as likely as not the Veteran's bilateral plantar fasciitis was incurred in or caused by his service. The examiner reasoned that the Veteran's foot pain upon beginning basic training was likely an aggravation of his pre-existing pes planus and that he then developed bilateral plantar fasciitis as a result. The Board thus concludes that it certainly is at least as likely as not, if not more likely than not, the Veteran's plantar fasciitis is attributable to his service even if, as the VA examiner explained, accepting the Veteran had bilateral pes planus when entering service. Accordingly, service connection for his plantar fasciitis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability, to include a left knee strain, is remanded. 2. Entitlement to service connection for lumbar spine degenerative joint disease (DJD), i.e., arthritis, is remanded. A remand by the Board confers on the Veteran or other claimant, as a matter of law, the right compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Following the Board's prior March 2020 remand of these claims, addendum medical opinions were to be requested, and the Board indicated these opinions should not rely solely on the absence of evidence of treatment as a reason for not finding a correlation ("nexus") between these claimed disabilities and the Veteran's service. The remand also was to consider his credible reports of continuity of symptoms since his service (including sworn testimony concerning that). Unfortunately, however, the addendum opinions obtained in September 2020 did not comply with these directives, in turn, meaning still more medical comment is needed before deciding the appeal of these claims. Accordingly, these claims again are REMANDED for the following still additional development and consideration: 1. Obtain still more medical comment (another addendum opinion) concerning the nature and etiology of the Veteran's left knee disability. His claims file, including a copy of this remand and the Board's prior remand, must be made available to and reviewed by the examiner for the pertinent history. In responding to whether any current left knee disability is as likely as not related or attributable to the Veteran's service, including especially to his documented left knee injury in service, the examiner must remain mindful that the Veteran is competent to attest to observable symptoms (e.g., pain and swelling in his left knee), both while in service after the injury and during the many years since his separation from service. Thus, if there is a medical basis to support or doubt the history provided by the Veteran of continuous or recurrent symptoms since his left knee injury in service, the examiner must provide a fully reasoned explanation. In other words, if, like the prior August 2016 VA examiner and more recent September 2020 VA examiner, the current examiner concludes the injury in service was acute and transitory (i.e., resolved so did not result in chronic or permanent disability), there must be discussion of the Veteran's lay statements and hearing testimony contending otherwise. That is to say, if it is reasonable to have expectation of more documentation in the service treatment records (STRs) in the aftermath of that injury, or even since in treatment records since service, the examiner must discuss the basis of this expectation and not rely exclusively on the absence of additional (or follow-up) treatment in the STRs and in the years since the Veteran's discharge from service, although it is permissible to consider this as one of the factors (just not the only factor) in determining whether any current left knee disability dates back to his service or is attributable to his injury in service. If the examiner concludes the requested opinion cannot be rendered without resorting to mere speculation, the examiner must clarify 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) or whatever other reason precludes a sufficiently definitive response. A clear rationale for the opinion must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Also obtain still more medical comment (another addendum opinion) concerning the nature and etiology of the Veteran's lumbar spine disability. His claims file, including a complete copy of this remand and the Board's prior remand, must be made available to and reviewed by the examiner for the pertinent history. In responding to whether any current lumbar spine disability is as likely as not related or attributable to the Veteran's service, including especially to his documented lumbar spine injury in service, it should be noted that the Veteran is competent to attest to observable symptomatology. The examiner's attention, therefore, is invited to the Veteran's statements and hearing testimony, under oath, concerning the nature and onset of his lumbar spine disability and continuation of it since his documented lumbar spine injury in service. Consequently, if there is a medical basis to support or doubt the history provided by the Veteran of continuous symptoms since that documented injury in service, the examiner must provide a fully reasoned explanation of why it is reasonable to have expectation of indication in the STRs of more treatment after that documented injury in service or in the years since service. In other words, it is permissible to consider this as one factor in determining whether any current lumbar spine disability dates back to the Veteran's service, including especially to that documented injury in service, but it cannot be the sole or exclusive reason for disassociating any current low back disability from the Veteran's service and that injury in service, in particular. If the examiner concludes this requested supplemental opinion (meaning in addition to the opinions already provided in August 2016 and September 2020) cannot be rendered without resorting to mere speculation, the examiner must 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) or whatever other reason precludes a sufficiently definitive response. A clear rationale for the opinion must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.