Citation Nr: 21032653 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-00 022 DATE: May 27, 2021 ORDER Entitlement to service connection for plantar fasciitis is denied. Entitlement to service connection for a foot disorder, to include calcaneal spurs of each foot, is denied. REMANDED Entitlement to service connection for pes planus is remanded. FINDING OF FACT The weight of the evidence of record is against a finding that plntar fasciitis or calcaneal spurs of each foot had onset in active service or is otherwise causally related to active service. CONCLUSIONS OF LAW The criteria for entitlement to service connection for a foot condition, to include plantar fasciitis and calcaneal spurs of each foot have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty training from January 1982 to May 1982, and active service from September 1982 to July 1988. The Veteran appealed a September 2013 rating decision, which also included claims of service connection for carpal tunnel syndrome (CTS), depression, and migraine headaches. See 09/11/2013 Rating Decision; 10/30/2013 NOD. Prior to issuance of the SOC the Agency of Original Jurisdiction (AOJ) granted the CTS and depression claims and granted service connection for hammer toes of both feet. On her Substantive Appeal, the Veteran opted to perfect only the appeal of the foot disorder claim. See 12/08/2017 VA Form 9. The AOJ characterized the issue of the case as service connection for a foot condition, to include pes planus and plantar fasciitis. See SOC. The Board acknowledges Clemons v. Shinseki, 23 Vet. App. 1 (2009), but also notes that pes planus and plantar fasciitis are two distinct disabilities, as reflected in the revised Schedular Rating Criteria for Musculoskeletal Disabilities where a separate Diagnostic Code for plantar fasciitis was added. Hence, for those reasons, and to conform the issues with the evidence of record, the Board has recharacterized the case as noted above. There is no indication in the claims file that the Veteran appealed either the assigned effective date of initial rating for either her CTS, depression, or hammer toes disability. Hence, those disabilities are not before the Board and will not addressed in this decision. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Transcripts of the Veteran's testimony before an AOJ Decision Review Officer (DRO) and before the undersigned at a virtual Board hearing are of record. Service Connection Applicable Legal Requirements Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted may be granted for any disease diagnosed after service, provided the evidence of record shows the required nexus with active service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (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 Lanyo v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge); see also 38 C.F.R. § 3.159(a). Lay evidence can also be competent and sufficient to establish a diagnosis 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, 1377 (Fed. Cir. 2007). 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); see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); see also 38 C.F.R. § 3.102. 1. Entitlement to service connection for plantar fasciitis is denied. Discussion On her formal claim, the Veteran only specified plantar fasciitis and a disorder of her toenails. See 08/24/2012 VA 21-526. The AOJ developed the claim as one for a bilateral foot disorder and added pes planus on its own initiative. See 08/15/2013 VA Examination, P. 9. In the 2017 examination report the VA examiner noted the calcaneal spurs as an incidental finding and rendered a negative nexus opinion on it. The Veteran asserts that she entered active service without any abnormalities of her feet. She asserts that having to participate in forced marches in improperly sized boots caused blisters on her feet and resulted in her currently diagnosed plantar fasciitis. She also asserts that she did not receive a physical examination at her release from active service. See 08/24/2012 VA 21-526; 03/23/2017 Hearing Testimony, P. 14; 01/06/2021 Hearing Transcript. Entries in the Veteran's service treatment records (STRs) dated in February 1982 and April 1983 note her complaints of blisters. In February 1982 she complained of blisters for the past day after a hike, and of a blister at the ball of her right foot after a forced march in April 1983. See 07/09/2013 STR-Medical, 3rd Entry, P. 3; 5th Entry, P. 12. As the Veteran asserts, her feet were assessed as normal at her entry into service, but contrary to her assertion, a physical examination at separation assessed her feet as normal. Id., 11th Entry, P. 1, 4, 6. The initial VA examination report (08/15/2013 VA Examination, P. 7-8) notes currently diagnosed disorders of calcaneal spurs and hammer toes of each foot. The examiner noted the Veteran's report that she was diagnosed in 1989, shortly after her release from active service. She had a regimen of physical therapy in 1992 and was issued inserts. X-rays of the feet were read as having shown mild to moderate calcaneal spurring, hammer toe deformities, and pes planus bilaterally. The examiner opined that it was not at least as likely as not that the Veteran's plantar fasciitis was causally related to her service, as there was no record of it manifesting until after her active service. Id. P. 17. The examiner did not comment or opine on the calcaneal spurs. After her testimony at the formal hearing, the DRO arranged another examination. The examination report (10/10/2017 C&P Exam, 1st Entry) reflects diagnoses of record of bilateral flat feet, hammer toe, and plantar fasciitis, all entered after the Veteran's active service. The Board notes that the examiner, or the transcriber, entered incorrect dates for the Veteran's reported in-service complaints. The Board notes further that the reported events are consistent with the Veteran's STRs and her lay reports, the erroneously typed dates notwithstanding. The examiner noted the Veteran's reported history as in-service reports of pain of her feet and heels for which she did not seek treatment. She also reported foot pain on walking and running during her active service. She reported treatment by a podiatrist and receipt of inserts. The examiner noted that the Veteran clearly has a currently diagnosed disorder of plantar fasciitis but opined that it is not at least as likely as not related to active service, including as due to marching and running. See 10/10/2017 C&P Exam, 3rd Entry, P. 2. The examiner noted that the Veteran's sole in-service complaints were for blisters and foot pain. The examiner noted that there was no diagnosis of foot pain consistent with plantar fasciitis despite her history of running. Hence, he opined that there was no correlation between the Veteran's running history and documented foot pain and her plantar fasciitis. The examiner opined further, however, that despite the absence of any documented in-service record of hammer toe, the Veteran's documented complaints of foot blisters was a known risk factor for hammer toe, and her lay reports of improperly sized boots was further evidence of service connection. Id. (Hammertoes of each foot are presently service connected.) Although on a disability not in issue, the Board notes this facet of the examiner's opinion as evidence that he in fact considered the Veteran's lay reports of her history, and that he did not rely solely on the absence of any particular documentation in the Veteran's medical records, in- or post-service. Hence, the Board finds that the examiner's rationale is fully supported by the evidence of record, see Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); and, finds further that the opinion garners significant weight. Hence, it is highly probative. The Board also notes that the clarity of the examiner's opinion on the plantar fasciitis is why the Board did not deem it necessary to include the disability in the remand directed later in this decision. The Board again acknowledges the Veteran's hearing testimony. To the extent that she opines that her plantar fasciitis is related to her active service, the Board finds that opining on etiology of a specific foot disorder is complex and requires medical training. See Jandreau, 492 F.3d 1372, 1377; see also 38 C.F.R. § 3.159(a). There is no evidence that she has any medical training. Hence, her opinion is not probative on the issue. The Board also notes the medical article on plantar fasciitis submitted under waiver of initial AOJ review and consideration. See 01/06/2021 Hearing Transcript, P. 2; Third Party Correspondence. The Board notes first that the general presumption of competence includes a presumption that physicians remain up to date on medical knowledge and current medical studies. See Monzingo v. Shinseki, 26 Vet. App. 97, 106-107 (2012). Further, the submitted article contains a general discussion of the nature of plantar fasciitis and its symptoms. The Board notes that the examiner's opinion and rationale included those considerations. The evidence set forth above constrains the Board to find that the preponderance of the evidence of record is against the Veteran's claim. 38 C.F.R. § 3.303. Since the preponderance of the evidence of record is against the claim, there is no reasonable doubt to resolve. See Gilbert, 1 Vet. App. 49, 53; see also 38 C.F.R. § 3.102. 2. Entitlement to service connection for a foot condition, to include calcaneal spurs of each foot, is denied. The above discussion on the plantar fasciitis is incorporated here by reference. In addition to the general requirements for service connection set forth earlier, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability that is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). As noted earlier, the 2013 examination report noted calcaneal spurs as an incidental finding on x-rays. The 2017 examination report also noted it as a diagnosis as of 2013. See 10/10/2017 C&P Exam, 1st Entry, P. 3. The examiner opined that it is not at least as likely as not that the calcaneal spurring on each of the Veteran's feet is causally related to her in-service marching and running. The examiner noted that the Veteran's in-service complaints of blisters were related to her plantar fasciitis, and he opined that the calcaneal spurring was most likely due to her plantar fasciitis. Since he found no causal connection between the plantar fasciitis, he found no service connection between the Veteran's active service and her calcaneal spurring of each foot. Id. The earlier discussion on the adequacy of the examination and nexus opinion is incorporated here by reference. Hence, the Board is also constrained to find that the preponderance of the evidence of record is against service connection for calcaneal spurring. 38 C.F.R. §§ 3.303, 3.310. Since the preponderance of the evidence of record is against the claim, there is no reasonable doubt to resolve. See Gilbert, 1 Vet. App. 49, 53; see also 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for pes planus is remanded. The VA examiner opined that the Veteran's pes planus is not service connected because it is a congenital condition and it was not worsened by the Veteran's active service. See 10/10/2017 C&P Exam, 1st Entry, P. 2. The examiner's opinion necessarily includes a finding that the Veteran's pes planus existed prior to service. As noted earlier, however, the Veteran's feet were assessed as normal at her entry into active service. Thus, her feet are deemed to have been in sound condition. 38 U.S.C. § 1111; 38 C.F.R. § 3.305(b). To rebut the presumption of soundness, there must be clear and unmistakable evidence that the Veteran's pes planus existed prior to service and that it did not worsen during active service. 38 C.F.R. §§ 3.304(b), 3.306(b). Therefore, the claim must be returned to the AOJ for development under the correct legal standards. The Board also notes that the Veteran testified that she sought treatment for her pes planus in 1990 at a private hospital. There are no indications in the claims file that there were any efforts to ascertain if any records of such treatment are extant. The matters are REMANDED for the following action: 1. The AOJ shall ask the Veteran for appropriate releases so that any existing records of treatment in 1990 for pes planus at Jay County Hospital in Indiana may be obtained. Document all efforts to obtain the referenced records. 2. Regardless of whether additional records are added to the file, send the claims file to the examiner who conducted the October 2017 foot examination or an equally qualified clinician. Inform the examiner that the Veteran's feet are deemed to have been in sound condition at the time she entered active service. Ask the examiner to opine on whether there is clear and unmistakable evidence that the Veteran's pes planus existed prior to service. If the answer is yes, then the examiner should state whether it is clear and unmistakable that any worsening of the pes planus was due to the natural progression of the disorder and not the rigors of the Veteran's active service. Inform the clinician further that clear and unmistakable evidence is evidence that is undebatable. If the clinician finds no clear and unmistakable evidence that the Veteran's pes planus preexisted active service, then is it at least as likely as not (at least a 50 percent probability) that her acquired pes planus is causally related to her active service? The clinician must provide a full explanation for all opinions provided. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.