Citation Nr: 23009293 Decision Date: 02/14/23 Archive Date: 02/14/23 DOCKET NO. 15-19 761 DATE: February 14, 2023 ORDER Entitlement to service connection for bilateral plantar fasciitis is granted. Entitlement to service connection for bilateral foot arthritis is granted. REMANDED Entitlement to an initial rating higher than 20 percent for left foot pes planus is remanded. Entitlement to an initial rating higher than 20 percent for right foot pes planus is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, from June 1, 2013, is remanded. FINDINGS OF FACT 1. The evidence is approximately evenly balanced as to whether the Veteran has current bilateral plantar fasciitis which began during active service. 2. The evidence is approximately evenly balanced as to whether the Veteran has current bilateral foot arthritis which began during active service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral plantar fasciitis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral foot arthritis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2012 to May 2013. These matters come before the Board of Veterans' Appeals (Board) from an April 2014 rating decision, in which the agency of original jurisdiction (AOJ) denied service connection for bilateral plantar fasciitis and bilateral foot arthritis. The AOJ also awarded service connection for bilateral pes planus and assigned an initial noncompensable disability rating, from June 1, 2013. In April 2015, a Decision Review Officer (DRO) assigned separate 20 percent disability ratings for left and right foot pes planus, both from June 1, 2013. The Veteran requested a Board hearing before a Veterans Law Judge (VLJ) on his May 2015 substantive appeal (VA Form 9). He withdrew his Board hearing request in January 2022 (see January 2022 "Statement in Support of Claim" form (VA Form 21-4138)). As for characterization of the issues on appeal, the Veteran reported on a November 2013 "Application for Disability Compensation and Related Compensation Benefits" form (VA Form 21-526EZ) that he was unemployable due to his service-connected foot disabilities. Also, the reports of VA foot examinations dated in April 2014 indicate that he was a full-time student and was unable to hold a job where he was on his feet all day. Entitlement to a TDIU may be an element of an appeal for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice, 22 Vet. App. 447, 453 (2009). Given the evidence of current disability, the Veteran's claim for the highest ratings possible for his service-connected bilateral pes planus, and the evidence of unemployability, the issue of entitlement to a TDIU is properly before the Board as part and parcel of the Veteran's appeal for higher initial ratings for bilateral pes planus. Entitlement to service connection for bilateral plantar fasciitis and bilateral foot arthritis Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101 (3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). Arthritis is included among the list of chronic diseases. Although entitlement to service connection may not be established on any of the presumptive bases noted above, a claimant is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). In this case, the Veteran contends that he has current bilateral plantar fasciitis and foot arthritis which had their onset in service. The Board finds, for the following reasons, that the evidence is approximately evenly balanced as to whether the Veteran has current bilateral plantar fasciitis and bilateral foot arthritis which began during active service. The Veteran's service treatment records indicate that he was treated for bilateral foot pain on various occasions during service. He was diagnosed as having bilateral plantar fasciitis in service in January and February 2013 and foot x-rays conducted during service in January 2013 revealed degenerative changes of the first metatarsophalangeal joint bilaterally. Also, he reported a history of foot trouble (identified as bilateral foot arthritis, pain, and corns) on an April 2013 report of medical history form completed for purposes of separation from service. In November 2013, within months of his separation from service in May 2013, the Veteran submitted a claim of service connection for bilateral foot disability. Moreover, the Veteran's post-service medical records and lay statements indicate that he has experienced continuous foot symptoms (including pain) in the years since service. The Veteran is competent to report continuous bilateral foot symptoms in the years since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Moreover, there is no evidence to explicitly contradict his reports, and they are generally consistent with the evidence of record. Thus, the Board finds that his reports of continuous bilateral foot symptoms in the years since service are credible. VA pes planus and miscellaneous foot disability examinations were conducted in April 2014 and the Veteran was diagnosed as having bilateral pes planus and plantar fasciitis which was diagnosed in January 2013. The physician assistant who conducted the examination explained that the Veteran's foot x-rays conducted in April 2014 were normal and that there was no objective evidence of any foot arthritis. Also, the examiner could not say, by examination, whether the Veteran still had flat feet. In sum, the evidence reflects that the Veteran experienced bilateral foot pain in service, that he was diagnosed as having bilateral plantar fasciitis in service, that there was x-ray evidence of bilateral foot arthritis in service, that the Veteran submitted his claim of service connection for bilateral foot disability within months of his separation from service, and that there have been continuous bilateral foot symptoms in the years since service. In light of the above, the Board finds that the evidence is approximately evenly balanced as to whether the Veteran has current bilateral plantar fasciitis and bilateral foot arthritis which had their onset in service. As the reasonable doubt created by this approximate balance in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral plantar fasciitis and bilateral foot arthritis is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). REASONS FOR REMAND 1. Entitlement to initial ratings higher than 20 percent for left and right foot pes planus are remanded. The Veteran was most recently afforded a VA examination to assess the severity of his bilateral pes planus in April 2014. The Board finds this examination is inadequate because the examination report contains conflicting information as to the severity of the Veteran's disability. Specifically, the examiner indicated that there was objective evidence of marked deformity and marked pronation of both feet. This is indicative of severe pes planus under 38 C.F.R. § 4.71a, Diagnostic Code 5276. However, the examiner subsequently concluded that the Veteran did not have any significant objective findings for flat feet that would cause chronic pain, that his flat feet seemed mild on examination, and that it was not a severe case of pes planus. In light of the above inconsistencies of the April 2014 examination report, the Veteran should be provided an opportunity to report for a new VA examination to ascertain the current severity and manifestations of his service-connected bilateral pes planus. 2. Entitlement to a TDIU due to service-connected disabilities, from June 1, 2013 Since the AOJ's implementation of the Board's award of service connection for bilateral plantar fasciitis and bilateral foot arthritis and a decision on the remanded higher rating matters could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. Also, the Veteran should be given an opportunity to submit a formal application for a TDIU (VA Form 21-8940). The matters are REMANDED for the following action: 1. Implement the Board's award of service connection for bilateral plantar fasciitis and bilateral foot arthritis, to include the assignment of initial disability ratings. 2. Ask the Veteran to complete a formal application for a TDIU (VA Form 21-8940) and to report his education and employment history and earnings, especially for the period since June 2013. 3. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for foot disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for foot disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral foot disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must provide reasons for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.