Citation Nr: 21030095 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 14-41 035 DATE: May 17, 2021 ORDER Service connection for a right foot plantar fasciitis is granted. Service connection for a left foot plantar fasciitis is granted. Service connection for right foot pes planus is denied. Service connection for left foot pes planus is denied. Service connection for residuals of a left 4th toe fracture is denied. Service connection for asthma is denied. REMANDED Service connection for a left knee disorder is remanded. FINDINGS OF FACT 1. The Veteran is currently diagnosed with plantar fasciitis in the right foot; right foot plantar fasciitis was diagnosed during service; the current right foot plantar fasciitis had its onset during service. 2. The Veteran is currently diagnosed with plantar fasciitis in the left foot; the left foot plantar fasciitis was diagnosed during service; the current left foot plantar fasciitis had its onset during service. 3. The Veteran is currently diagnosed with pes planus in the right foot; the current right foot pes planus did not have its onset during service and is not otherwise etiologically related to service. 4. The Veteran is currently diagnosed with pes planus in the left foot; the current left foot pes planus did not have its onset during service and is not otherwise etiologically related to service. 5. The Veteran is not currently diagnosed with residuals of a left 4th toe fracture. 6. The Veteran is not currently diagnosed with asthma. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for right foot plantar fasciitis have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for left foot plantar fasciitis have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 3. The criteria for service connection for a right foot pes planus have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 4. The criteria for service connection for left foot pes planus have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 5. The criteria for service connection for residuals of a left 4th toe fracture have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 6. The criteria for service connection for asthma have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from December 1975 to November 1995. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Veteran is currently diagnosed with plantar fasciitis and pes planus, which are not listed as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" inservice symptoms and "continuous" post-service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Service connection for right foot plantar fasciitis 2. Service connection for left foot plantar fasciitis The Veteran contends that service connection for right and left foot plantar fasciitis is warranted as the right and left foot disabilities had their onset during service and symptoms of the same have continued since service separation. See February 2010 Statement in Support of Claim. Initially, the Board finds the Veteran is currently diagnosed with plantar fasciitis in the right and left feet. See May 2008 VA treatment record. At the outset, the Board notes that a portion of the Veteran's service treatment records are not available for review, and that the Veteran's claim file has been rebuilt. Because plantar fasciitis in either foot was not "noted" at service entrance or examination, the burden shifts to VA to demonstrate by clear and unmistakable evidence both that plantar fasciitis preexisted service and was not aggravated by service. The Board finds that the presumption of soundness has not been rebutted in this case because the evidence is not clear and unmistakable that plantar fasciitis preexisted service; consequently, this case converts to one for direct service connection. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). As such, the Board finds that the Veteran entered into service in sound condition as to the right and left foot disabilities. After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's current right and left foot plantar fasciitis had their onset during service. Available service treatment records reflect the Veteran was seen on numerous occasions throughout active service for complaints of right and left foot pain. See e.g. April 1976 service treatment record; November 1980 service treatment record; July 1989 service treatment record. A November 1980 service treatment record reflects that the Veteran complained of swelling in the feet intermittently for three months without history of injury, which the service examiner assessed to be plantar fasciitis. Post-service treatment records reflect the Veteran has continued to be treated for plantar fasciitis that he reported had been present for quite some time. See e.g. May 2008 private treatment record. The Veteran underwent a VA examination in July 2014, the examination report for which reflects no current diagnosis for plantar fasciitis in either foot. The July 2014 VA examiner opined that the Veteran does not have a current diagnosis for plantar fasciitis in either the right or the left foot, thus the claimed plantar fasciitis is less likely than not related to active service. However, the July 2014 VA examiner did not address private treatment records reflecting a current diagnosis for plantar fasciitis and did not address whether the currently diagnosed plantar fasciitis is etiologically related to the plantar fasciitis diagnosed during service in November 1980. The Veteran underwent another VA examination in January 2021, the examination report for which reflects the Veteran was again not diagnosed with plantar fasciitis. The January 2021 VA examiner opined that it is less likely than not that the claimed plantar fasciitis is etiologically related to active service as service treatment records are silent for plantar fasciitis. However, the January 2021 VA examiner's opinion is based upon incorrect facts as the November 1980 service treatment records discussed above reflect the Veteran was assessed to have plantar fasciitis during service. Additionally, the January 2021 VA examiner's negative nexus opinion is based upon incomplete service treatment records and did not address the Veteran's lay reports of experiencing right and left foot pain during service or the diagnosis of plantar fasciitis during service. As the record does not contain any other competent medical nexus opinions that weigh against the claim, and there are symptoms of foot pain and diagnosis of plantar fasciitis during service, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's current plantar fasciitis in the right and left feet had its onset during service. Resolving reasonable doubt in the Veteran's favor, the Board finds that the current right and left foot plantar fasciitis is etiologically related to the plantar fasciitis diagnosed and treated during service. Accordingly, service connection for plantar fasciitis in the right and left feet are being granted on a direct basis. 3. Service connection for right foot pes planus 4. Service connection for left foot pes planus Although the Veteran seeks service connection for plantar fasciitis in the right and left feet, the Board has interpreted his claim for service connection to encompass service connection for pes planus in the right and left feet as well. Initially, the Board finds the Veteran is currently diagnosed with pes planus in the right and left feet. See January 2021 VA examination report. Pes planus in the right and left feet were not "noted" at entrance into service. As such, the Board finds that the Veteran entered into service in sound condition as to the claimed right and left foot disabilities, and the burden is on VA to establish that pes planus clearly and unmistakably preexisted service. In this case, there are missing service treatment records, including no service enlistment examination report; therefore, there is no factual or evidentiary basis for the July 2014 VA examiner's purported opinion that pes planus preexisted service. Similarly, a January 2021 VA examiner also purported to opine that the currently diagnosed right and left foot pes planus clearly and unmistakable preexisted service and was not clearly and unmistakably aggravated by service; notably, the January 2021 VA examiner did not cite any evidence to support the finding that pes planus in the right and left foot preexisted service. As the Veteran's service entrance examination report is unavailable for review, and a July 1995 service examination report does not note any deformities in either foot, the Board finds that pes planus in the right and left feet were not "noted" at entrance into service. The Board finds that the presumption of soundness has not been rebutted in this case because the evidence is not clear and unmistakable that pes planus preexisted service; consequently, this case converts to one for direct service connection. See Wagner, 370 F.3d at 1096. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that right and left foot pes planus had their onset during service or are otherwise etiologically related to service. Although the service treatment records available for review are incomplete, as noted above, the Veteran was seen on numerous occasions throughout service for complaints of right and left foot pain. While service treatment records reflect the Veteran was seen on numerous occasions throughout active service for complaints of right and left foot pain, such symptoms and findings were related by contemporaneous evidence to a diagnosis of plantar fasciitis, for which service connection is being granted in this Board decision, rather than pes planus. Service treatment records do not reflect the Veteran was assessed to have or was diagnosed with pes planus in either foot during service. A July 1995 service examination report, which was performed less than six months prior to service separation, reflects the Veteran's feet were found to be clinically normal. Post-service treatment records do not reflect any complaints, symptoms, treatment, or diagnosis for pes planus until 2008 in a May 2008 private treatment record. As discussed above, the Veteran underwent a VA examination in July 2014, the examination report for which reflects a diagnosis of pes planus in the right and left feet, but noted, without evidence, that the right and left foot pes planus preexisted service. The VA examiner did not provide a direct nexus opinion as to the currently diagnosed pes planus. The Veteran underwent another VA examination in January 2021, the examination report for which reflects a diagnosis of pes planus in the right and left feet. Treatment records are silent for evidence of pes planus, and the January 2021 VA examiner did not note or point to any specific service treatment records reflecting any notation, findings, treatment, or diagnosis for pes planus in either the right or the left foot. In another opinion, the same January 2021 VA examiner purported to opine that right and left foot pes planus clearly and unmistakably preexisted service and was not clearly and unmistakably aggravated by service because service treatment records are negative for complaints of bilateral pes planus and other medical evidence of record are also negative for complaints of chronic issues relating to bilateral pes planus. As the January 2021 VA examiner's opinions contradict one another on the question of whether available service treatment records reflect treatment for pes planus during service, and the examiner applies a legally irrelevant preexistence/aggravation opinion to a direct service connection question, the Board finds the January 2021 VA examiner's opinion to be of no probative value. While service treatment records reflect the Veteran was seen on numerous occasions throughout active service for complaints of right and left foot pain, such symptoms and findings were related by contemporaneous evidence to a diagnosis of plantar fasciitis, for which service connection is being granted in this Board decision, rather than pes planus. This leaves no foot symptoms in service that are unaccounted for that are not found to be attributable to the now service-connected bilateral plantar fasciitis. The Board may not attribute those same in-service symptoms, findings, and treatment to the distinct diagnosis of pes planus, as doing in order to find an in-service injury, disease, or event in order to grant service connection for bilateral pes planus, would constitute prohibited pyramiding of compensation. See 38 C.F.R. § 4.14 (prohibiting rating the same disability under different diagnoses); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). As there is no in-service injury, disease, or event of pes planus in service, all the in-service symptoms and impairment have been attributed to the service-connected bilateral plantar fasciitis, and the evidence first shows a diagnosis of pes planus years after service, there is no further duty to assist, including by requesting further medical opinions, as there is nothing in service to which the post-service diagnosis of pes planus could be related. Where there is no in-service injury, disease, or event, there is no reasonable possibility that further medical opinion would help substantiate the appeal. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that that there was no in-service event or injury, a VA examination is not required). Any purported opinion relating the post-service diagnosis of pes planus to service would necessarily be based on a factually inaccurate assumption that there were symptoms, findings, or diagnosis of pes planus during service an assumption that is inconsistent with the Board's factual findings in this case based on a weighing of all the lay and medical evidence. For this reason, any purported direct nexus opinion offered would be of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis, but cannot reject the opinion solely because the history was from the veteran). As the evidence shows no pes planus during service, and attributes all foot symptoms and impairment to the now service-connected plantar fasciitis, the Board finds that the weight of the evidence is against finding that the current right and left foot pes planus had their onset during service, or are otherwise etiologically related to service; therefore, the claims must be denied. 5. Service connection for a residuals of a left 4th toe fracture 6. Service connection for asthma The Veteran generally seeks service connection for residuals of a left 4th toe fracture and asthma and contends the claimed disorders were treated during service. See February 2010 Statement in Support of Claim. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current diagnosis or functionally impairing disabilities of residuals of a left 4th toe fracture or asthma. Although service treatment records show the Veteran was treated for complaints of left 4th toe pain (with no fracture found on X-rays) and asthma, VA and private treatment records throughout the relevant claims period on appeal do not reflect any complaints, symptoms, treatment, or diagnoses for residuals of a left 4th toe fracture or asthma. In the absence of current disabilities at any time during or immediately prior to the claim periods, the appeals for service connection for residuals of a left 4th toe fracture and asthma must be denied. REASONS FOR REMAND 7. Service connection for a left knee disorder is remanded. The Veteran asserts that a current left knee disorder had its onset during service from working as an aircraft mechanic, which required him to kneel on his knees frequently. See January 2021 VA examination report. The Veteran underwent VA examinations in July 2014 and January 2021. The July 2014 VA examiner opined that the left knee disorder was less likely than not incurred in or caused by service because service treatment records contained only once instance of left knee pain and that examination of the Veteran's left knee was relatively benign. The January 2021 VA examiner diagnosed left knee bursitis and opined that it is less likely than not that the current left knee bursitis is etiologically related to service because service treatment records are negative for left knee complaints. The Board finds both the July 2014 and January 2021 VA opinions inadequate as both negative opinions are premised upon evidence of left knee treatment during service reflected in service treatment records that are incomplete. Additionally, the January 2021 VA examiner stated that service treatment records are negative for left knee complaints, which is inconsistent with available service treatment records reflecting at least one instance of left knee complaints during service. See January 1987 service treatment record. Neither the July 2014 nor the January 2021 VA examiner addressed the in-service event of frequent kneeling as an aircraft mechanic during service. Accordingly, remand for a new VA opinion is needed. The matter is REMANDED for the following action: Request that a VA medical professional review the electronic file and provide the VA addendum opinion requested below for the claimed left knee disorder, to include left knee bursitis. If the VA examiner determines that additional examination(s) of the Veteran is necessary to provide reliable opinions as to causation, such examination(s) should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The VA examiner should provide the following opinion: Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's current left knee disorder had its onset during service, or is otherwise etiologically related to service, to include frequent kneeling as an aircraft mechanic during service? The VA examiner should not use the absence or lack of left knee complaints reflected in incomplete service treatment records as the basis for a negative nexus opinion. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.