Citation Nr: 23023965 Decision Date: 04/25/23 Archive Date: 04/25/23 DOCKET NO. 19-20 230 DATE: April 25, 2023 ORDER Entitlement to service connection for bilateral plantar fasciitis (hereinafter "foot disability") is granted. REMANDED Entitlement to service connection for chronic muscle and joint pains is remanded. Entitlement to service connection for frequent urination is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the Veteran's foot disability was incurred during service. CONCLUSION OF LAW The criteria for service connection for a bilateral foot disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1983 to April 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from the September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for a bilateral foot disability is granted. The Veteran contends that he is entitled to service connection for a bilateral foot disability. Specifically, the Veteran contends that his condition is, "in direct correlation to [his] tour of active duty". See e.g. November 2015 Statement in Support of the Claim. As an initial matter, the Board notes that the RO originally issued a rating decision in August of 2007 which, in relevant part, denied the Veteran's claim for service connection for the asserted bilateral foot condition. This decision was not appealed in a timely fashion and became final. Later, the RO determined that new and material evidence has been received and reopened and denied the claim on the merits. See June 2019 Statement of the Case. The Board concurs and accepts this prior reopening as a favorable finding for the sake of brevity; given the fully favorable nature of this decision, there is no prejudice to the Veteran in doing so. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, it must be shown that there was: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence for and against a claim, the Board resolves all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4 776 (Fed. Cir. 2021). Here, it is uncontroverted that the Veteran has a current bilateral foot disability. See e.g. April 2019 VA Examination. It is also undisputed that his service treatment records document foot-related complaints in December of 2002 at his examination administered in anticipation of retirement, to include the assertion that, "both heels often hurt". A notation is also included which states, "no current problems. Probable plantar fascitis". Thus, the remaining issue before the Board is whether these in-service symptoms represented the onset of the Veteran's bilateral foot disability and/or whether the claimed condition is otherwise related to his military service as he alleges. The Board takes note of the December 2019 opinion authored by a private foot and ankle surgeon who stated that the Veteran's asserted foot disability is, "service-connected and aggravated by long periods of time standing and walking on military boots throughout his military career". The Board has also considered the VA opinions authored by examiners who interpreted the evidence of record differently in authoring negative nexus opinions. However, because each of these opinions constitutes competent, credible medical evidence of record, any lingering doubt is resolved in the Veteran's favor. Therefore, the claim for entitlement to service connection for a bilateral foot disability is granted. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The claims of entitlement to service connection for chronic muscle and joint pains and entitlement to service connection for frequent urination are remanded. Unfortunately, the opinions currently of record provide an insufficient basis upon which to decide the claim. In particular, the Board takes note of the August 2019 negative nexus opinion that states relevant to the foregoing conditions that these, "issues have not been found to have a nexus to environmental exposures in Southwest Asia according to the 2009 IOM report on Health and the Gulf Veteran. OA is result of normal wear and tear on joints with a genetic component and in this case accelerated by age, gout and his overweight status. BPH is an age related phenomena that increases with advancing age in males." It was determined that each of these conditions, "has no relationship to Gulf exposures and the majority of those with the condition recover completely within a few months rather than becoming chronic in nature". However, the provided rationale does not indicate whether either or both of these conditions could be related to the Veteran's military service for reasons other than a, "relationship to Gulf exposures [in-service]". In addition, neither the fact that one condition may be, "accelerated by age, gout and his overweight status" nor that the other, "is an age related phenomena that increases with advancing age in males" actually excludes the possibility of either condition being related to the Veteran's military service. Additional opinions should be authored on remand. The matters are REMANDED for the following actions: 1. Obtain any outstanding relevant VA treatment records and associate them with the record. If development on remand indicates that there are outstanding private treatment records relevant to the issues on appeal, make reasonable efforts to associate them with the claims file. Complete before proceeding. 2. Schedule the Veteran for respective VA examinations for his claimed (a) chronic muscle and joint pains condition and (b) frequent urination condition. For each diagnosis that is affirmatively indicated, the examiner should note any symptoms attributable to that diagnosed condition. Thereafter, the examiner should author an opinion regarding the nature and etiology of each condition. The entire claims file, including a complete copy of this remand and the results of the VA examination, should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. Following a review of the evidence of record, to include the Veteran's lay statements, the examiner should answer the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's claimed condition had its onset during active duty or is causally or etiologically related to any in-service event, disease, or injury. The examiner must consider and discuss all relevant medical and other objective evidence, as well as all lay assertions, to include the Veteran's assertions as to in-service events, and as to the nature, onset and continuity of symptoms. A full rationale must be provided for all opinions reached. 3. Thereafter, readjudicate the claims. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, Associate 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.