Citation Nr: 1736633	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  09-02 506	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for a bilateral foot disability, to include pes planus.

2.  Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected intervertebral disc syndrome of the lumbar spine.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Hellen Papavizas, Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from July 1986 to July 1989. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia. 

In July 2011, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge in July 2011.  A transcript of the hearing has been associated with the claims file.  

In September 2011, February 2013, and October 2015, the Board remanded the appeal for further development.

Apart from the issue decided herein, the remaining issue on appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's bilateral plantar fasciitis is related to his military service.


CONCLUSION OF LAW

The criteria for service connection for plantar fasciitis have been met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

With respect to the claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).  Nevertheless, the Board finds that no prejudice results to the Veteran in adjudicating his claim for a bilateral foot condition without outstanding records pertaining to a recent 2016 award of disability benefits from the Social Security Administration, as these records appear to involve conditions unrelated to his feet and would not have provided probative evidence of aggravation of the Veteran's preexisting pes planus during service.

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.  Service connection generally requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247 (1999). 

Additionally, a veteran who served during a period of war, or after December 31, 1946, 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service.  38 U.S.C.A. § 1111.

When the presumption of soundness attaches to a claim but there is a question of preexisting disability, VA has the burden of establishing by clear and unmistakable evidence (1) that a disability preexisted service and (2) that there was no aggravation during service.  Wagner v. Principi, 370 F. 3d 1089, 1096 (2004).

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail.  To deny a claim on its merits, the evidence must preponderate against the claim.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996).

The Veteran's November 1985 entry examination reflects that he had a preexisting pes planus disability upon entry to military service.  Service treatment records show complaints of bilateral foot pain.  A July 1986 service treatment record reflects a diagnosis of plantar fasciitis of the right foot, with mild pain to palpation noted along the plantar fascia.  An August 1986 service treatment record shows that the Veteran complained of bilateral foot pain attributed to pes planus.  

Post-service VA treatment records reflect treatment for both bilateral pes planus and bilateral plantar fasciitis.

In July 2011, the Veteran testified that that he had experienced bilateral foot pain in service and was required to wear shoe inserts to mitigate the pain, which he has continued to wear since his discharge from service for ongoing foot issues.

In March 2012, the Veteran underwent VA examination of the feet.  The examiner diagnosed the Veteran with congenital pes planus, concluding that this condition pre-existed military service and was not aggravated beyond its natural progression by service.  No opinion was offered concerning plantar fasciitis.

In May 2016, a VA medical opinion was obtained concerning the Veteran's bilateral foot conditions.  The examiner found that the bilateral foot pain that the Veteran had experienced in service was secondary to plantar fasciitis and that there was no evidence that his preexisting bilateral pes planus had worsened or been aggravated during service.  The examiner explained that pes planus and plantar fasciitis are two separate foot conditions and that the cause of his foot pain was not pes planus but plantar fasciitis because there is no increased incidence of plantar fasciitis in persons with pes planus and because there are no complications in most cases of pes planus.  As before, no opinion concerning the relationship between the Veteran's plantar fasciitis and military service was offered.

Based upon the foregoing, the Board finds that, after giving the Veteran the benefit of the doubt, service connection is warranted for bilateral plantar fasciitis.  Service treatment records show that the Veteran complained of and was treated for plantar fasciitis during active duty service.  Post-service medical records show that the Veteran has a current diagnosis of bilateral plantar fasciitis, which the evidence, including his lay statements, shows began in service and continued to the present day.  Therefore, service connection for plantar fasciitis is warranted, but service connection for bilateral pes planus must be denied as the evidence fails to show that such preexisting condition was clearly and unmistakably aggravated during service.


ORDER

Entitlement to service connection for bilateral plantar fasciitis is granted.


REMAND

Review of the record also shows that remand is warranted to obtain outstanding Social Security Administration (SSA) records.  In this regard, a March 2016 VA treatment record notes that the Veteran had recently been approved for SSA disability benefits in the amount of $400.00, although the basis for this award was not specified.  However, a subsequent June 2016 VA treatment record reflects that the Veteran was required to stop working after on-the-job drug testing was positive for opioid use by the Veteran for his severe neck and back pain, suggesting that SSA benefits may have been awarded at least in part to his cervical spine condition.  The AOJ has not yet attempted to obtain the Veteran's SSA records.  As such, a remand is necessary in order to obtain any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim.  See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA).

Accordingly, the case is REMANDED for the following action:

1.  Contact SSA and request the Veteran's complete SSA records, including any administrative decision(s) on his application for disability benefits and all underlying medical records which are in SSA's possession. A copy of any request(s) sent to SSA, and any reply, to include any records obtained from SSA, must be included in the claims file.  All reasonable attempts should be made to obtain such records.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file.  The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records.

2.  Upon completion of the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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