Citation Nr: A25035287 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210520-161728 DATE: April 16, 2025 ORDER Service connection for left foot pain condition is denied. Service connection for left plantar fasciitis is denied. REMANDED Service connection for right foot pain condition is remanded. Service connection for right plantar fasciitis is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran had left foot pain at any time during or approximate to the pendency of the claim. 2. The evidence of record persuasively weighs against finding that the Veteran had left plantar fasciitis at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for foot pain have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left plantar fasciitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2003 to December 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2020 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), also known as the agency of original jurisdiction (AOJ). In the May 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the August 2020 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of right foot pain and right plantar fasciitis, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the injury or disease was incurred in service. 38 C.F.R. § 3.303(d). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a). Competent lay evidence means any evidence not requiring the layperson to have specialized education, training, or experience. For testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration and must have personal knowledge in order to be considered competent to testify to a matter. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant; however, if the evidence of record is either persuasively for or persuasively against the claim, then the benefit-of-the-doubt rule no longer applies and the claim is instead adjudicated in accordance with the evidence. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). The VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Service connection for left foot pain condition is denied. Service connection for left plantar fasciitis is denied. The Veteran and his representative contend that the Veteran has left foot pain and left plantar fasciitis that was diagnosed and caused by pack load and hiking in boot camp. The Veteran contends that the pain has increased with use and that the arch support/inserts that were provided to him have not relieved his pain. See January 2020 VA Form 21-526EZ. Initially, the Board observes the August 2020 rating decision that notes a favorable finding that the Veteran has been diagnosed with foot pain. Typically, the Board would be bound by this favorable finding absent clear and unmistakable error. 38 C.F.R. § 3.104. However, in this case, the Board notes that this was a clear and unmistakable error. In that regard, the evidence of record shows that the Veteran's diagnosis for his foot condition is specific to his right foot. There is no mention of foot pain or plantar fasciitis of the left foot. Therefore, the Board is not bound by this favorable finding. The Board notes that the only evidence of record in favor of the claim is the Veteran's contention that he was diagnosed with left plantar fasciitis during boot camp and provided with arch support/inserts; however, the evidence of record does not support that contention. See 38 U.S.C. § 5103(d)(2)(B); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a Veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all Veterans could make such a statement, and such theory would eliminate the carefully drafted statutory standards governing the provision of a medical examination and require VA to provide such examinations as a matter of course in virtually every disability case). As such, the low threshold of McLendon has not been triggered. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Veteran specifically noted that he did not currently have, nor had he ever had foot pain during his December 2008 physical exam. See February 2009 STRs. While the Veteran believes there is a current diagnosis of left plantar fasciitis, the Veteran is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, the Board concludes that the record does not contain competent evidence of a current diagnosis of plantar fasciitis or recurrent symptoms of a left foot disability at any time during the pendency of the claim or prior to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, the Board finds that an examination, for a nexus opinion for the Veteran's undiagnosed left foot condition, is not warranted. Based on the above, the Board finds that the evidence persuasively weighs against the Veteran's claims for service connection for left foot pain and left plantar fasciitis. Therefore, entitlement to service connection is not warranted and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Lynch v. McDonough, F.4th 776 (Fed. Cir. 2021) (en banc). REASONS FOR REMAND Service connection for right foot pain condition is remanded. Service connection for right plantar fasciitis is remanded. The Veteran and his representative contend that the Veteran has right foot pain and right plantar fasciitis that was diagnosed and caused by pack load and hiking in boot camp. The Veteran contends that the arch support/inserts that he was provided do not relieve his pain which is worsened by walking. The Veteran reports that his right foot is worse than the left due to limited flexibility of his big toe. See January 2020 VA 21-526EZ. The issue of entitlement to service connection for right foot pain and right plantar fasciitis is remanded to correct a pre-decisional duty to assist error. Under the Appeals Modernization Act (AMA), the Board has jurisdiction to remand an appeal to the AOJ for correction of a pre-decisional regulatory or statutory duty to assist error if correction of such an error would have a reasonable possibility of helping to substantiate a claim. 38 C.F.R. § 20.802(a). Here, the Veteran has not been afforded a VA examination nor is there a medical nexus opinion contained in the Veteran's claims file. VA is required to provide an examination and obtain a medical opinion in a claim for service connection when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence of an in-service event, injury, or disease; (3) an indication that the current disability may be associated with the in-service event; and (4) otherwise insufficient evidence to decide the claim. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. The Board finds that there is competent evidence of a current disability, to wit: a November 2021 diagnosis of right foot pain. See May 2022 CAPRI records. Additionally, the Veteran reported that his foot disability began while serving on active duty due to ruck marching which right foot pain has persisted since. See January 2020 VA Form 21-526EZ. The Board notes that although the Veteran is not competent to provide a diagnosis in this case, the Veteran is competent to report as to the onset and continuity of his right foot pain which contention is supported by his post-service medical records. Additionally, although the Veteran denied having foot pain during his December 2008 physical exam, the Veteran's CAPRI records note diagnosis of right foot pain for which the Veteran was referred to podiatry for treatment. See February 2009 STRs; also see May 2022 CAPRI records. Therefore, the Board finds that a VA exam is required to obtain an opinion to determine the nature and cause of the Veteran's right foot condition. The matters are REMANDED for the following action: 1. Schedule the Veteran for an VA examination provide information with regard to the Veteran's diagnosed right foot condition(s). All indicated tests and studies should be conducted. The contents of the electronic claims file must be made available to the examiner for review in connection with the examination. The clinician should then respond to the following: (a.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the right foot condition had its onset during active service or is otherwise causally related to an in-service disease, event, or injury. (b.) In rendering this opinion, the examiner must consider the Veteran's description of his in-service and post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? A complete rationale for all opinions expressed must be provided. (c.) The examiner should note that the absence of evidence of treatment for a disability in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. The clinician is advised that the Board has not made any credibility determinations with respect to the Veteran's reports of symptoms and history of his right foot condition. However, the Veteran's documented lay statements are competent to attest to factual matters of which he had first-hand knowledge, such as experiencing perceivable symptoms. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Marchese, Angel N. 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.