PLANTAR FASCIITIS

Summary

The veteran, who served from May 1966 to May 1968, appeals the denial of service connection for left foot plantar fasciitis, degenerative arthritis, calcaneal spurs, and left ankle osteoarthritis. The Board found that the veteran has current left foot and left ankle disabilities that began during active service, are related to an in-service injury, and/or are aggravated by service-connected disabilities. Service treatment records did not show specific complaints or diagnoses for the left foot or ankle, but did note swollen or painful joints at separation. A private provider's statement linked the current bilateral ankle condition to military service, noting restrictions due to chronic weakness and instability, and suggested the left ankle condition was aggravated by compensation for the right ankle's injury. While a VA examiner rendered a negative opinion for the left ankle, finding the private provider's report unsupported and the injury likely due to post-service racquetball, the Board found this opinion inadequate. The Board noted the VA examiner did not adequately address the long-term impact of the right ankle disability on the left, nor did they reference the medical literature provided by the private doctor. Resolving all doubt in the veteran's favor, the Board granted service connection for the left foot and left ankle disabilities. The case was remanded for a new VA examination to determine the current severity of the right ankle disability and to adjudicate the issue of TDIU, as the veteran's right ankle impairment may have worsened and the record suggested TDIU was raised prior to the AOJ decision.

Rationale

Resolving reasonable doubt in Veteran's favor; At least as likely as not related to active service; Aggravated by service-connected right ankle disability; Private provider opinion found probative; VA examiner opinion inadequate

Full Decision Text

Citation Nr: A22008356
Decision Date: 05/09/22	Archive Date: 05/09/22

DOCKET NO. 200518-87442
DATE: May 9, 2022

ORDER

Entitlement to service connection for left foot plantar fasciitis, degenerative arthritis and calcaneal spurs is granted.

Entitlement to service connection for left ankle osteoarthritis is granted.

REMANDED

Entitlement to an evaluation in excess of 10 percent for right ankle strain with Achilles tendon rupture, is remanded.

Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. Resolving reasonable doubt in the Veteran's favor, his left foot plantar fasciitis, degenerative arthritis and calcaneal spurs are at least as likely as not related to his active service and a service-connected right ankle disability.

2. Resolving reasonable doubt in the Veteran's favor, his left ankle osteoarthritis is at least as likely as not related to his active service and a service-connected right ankle disability.

CONCLUSIONS OF LAW

1. The criteria for service connection for left foot plantar fasciitis, degenerative arthritis and calcaneal spurs are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for service connection for left ankle osteoarthritis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1966 to May 1968.

Regarding the issue of entitlement to service connection for a left foot disability, the rating decision on appeal was issued in February 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. Therefore, with regard to this issue the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal dated in February 2020 and any evidence submitted during an applicable evidentiary window. 38 C.F.R. § 20.301.

In April 2020 the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the issues of entitlement to service connection for a left ankle disability and entitlement to an evaluation in excess of 10 percent for right ankle disability, most recently addressed in a February 2020 rating decision. In May 2020, the AOJ issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claims based on the evidence of record at the time of that decision. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal and any evidence submitted during an applicable evidentiary window.  

In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket.

Therefore, the Board may only consider the evidence of record at the time of the AOJ decisions 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.

The May 2020 rating decision found that new and relevant evidence had been received to readjudicate the claim of entitlement to service connection for a left ankle disability. This is a favorable finding by the agency of original jurisdiction (AOJ) and the Board will proceed to the address the claim on the merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c).

Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding claims, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim 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 claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

As the Board is remanding the claims of entitlement to a higher evaluation for right ankle strain with Achilles tendon rupture and entitlement to TDIU for further development, this additional evidence will
 during a period of time when new evidence was not allowed. As the Board is deciding claims, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim 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 claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

As the Board is remanding the claims of entitlement to a higher evaluation for right ankle strain with Achilles tendon rupture and entitlement to TDIU for further development, this additional evidence will be considered by the AOJ in the adjudication of those claims.

Service Connection

1. Entitlement to service connection for a left foot disability.

2. Entitlement to service connection for left ankle disability.

The Veteran seeks entitlement to service connection for left foot and left ankle disabilities. 

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 be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310.

The Board concludes that the Veteran has current left foot and left ankle disabilities that began during active service, are related to an in-service injury, and/or are aggravated by the Veteran's service-connected disabilities. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

Service treatment records do not show complaints, diagnosis, or treatment for a left foot or left ankle disability. It is acknowledged that upon the Report of Medical History at separation from service in February 1968, the Veteran reported swollen or painful joints. Upon examination, no foot or lower extremity disabilities were noted.

In a statement dated in November 2017, a private provider noted that there was a report of continued adverse bilateral ankle medical condition from his induction in 1966 until his discharge in 1968. The provider reported that although surgery was performed on the Veteran's right ankle in 1967, on several occasions military activities were restricted because of his chronic weak and unstable ankle conditions. He had Achilles tendon surgery in the left ankle in 2003 and this was likely as a result of continued chronic aggravation and weakness caused by this military service as there is recorded.

The Veteran submitted argument citing to literature regarding the delay between trauma to the joints and osteoarthritis. In addition, the Veteran has submitted articles regarding arthritis development.

The Veteran was afforded a VA examination in January 2019. The Veteran was diagnosed with Achilles tendon rupture and calcaneal spurs of both the left and right. The examiner noted that the Veteran had undergone surgical repair of the left tendon in 1967.

In May 2019 a private provider reported that the Veteran indicated that he had acute pain to his feet and ankles when running, jumping, crawling, marching, standing for long periods, etc. in service. The Veteran remembered standing at attention in his group formation every morning for long periods of time. This resulted in marked tenderness, weakness, foot instability, pain and excess fatigability to the lateral portion of the feet and ankles. The examiner reported that there were complaints of pain in the medical records in June 1966. The bilateral ankle degeneration and arthritis began in service and continued since. The examiner noted that the Veteran's service was followed by reported pain and injuries to both the Veteran's feet and ankles. The provider included reference to medical literature. The provider reported that the chronic reports of pain and following treatment, if any, indicate that the feet and ankles in particular the right foot was being abnormally stressed and aggravated and more likely than not weakened. Whether reported or not the same adverse conditions were suffered by the left foot more so than would normally be suffered due to compensation for the right foot. Thereafter, the mechanism for this relationship was discussed. The provider indicated that it is more likely than not that the severe injury to the right ankle in 196
6. The bilateral ankle degeneration and arthritis began in service and continued since. The examiner noted that the Veteran's service was followed by reported pain and injuries to both the Veteran's feet and ankles. The provider included reference to medical literature. The provider reported that the chronic reports of pain and following treatment, if any, indicate that the feet and ankles in particular the right foot was being abnormally stressed and aggravated and more likely than not weakened. Whether reported or not the same adverse conditions were suffered by the left foot more so than would normally be suffered due to compensation for the right foot. Thereafter, the mechanism for this relationship was discussed. The provider indicated that it is more likely than not that the severe injury to the right ankle in 1966 resulted in the Veteran's left ankle and foot compensating for the failure of the right ankle for years causing unnatural aggravation until in 2004 the left ankle failed.

A VA medical opinion was obtained in August 2019. The examiner rendered a negative opinion with regard to the Veteran's left ankle disability. The examiner reported that the Veteran had a well-documented right ankle condition in service in the record. The provided examination report and associated letter, however document that he had left ankle conditions in service. The examiner noted that there was no evidence that the Veteran had a left ankle condition in service. The Veteran had one document dated in January 1967 that documented a left ankle sprain but the orthopedic note on the same page documents that the condition was the right only. The previous documentation is clearly an error in documentation without other supportive evidence. The examiner noted that the provided letter also documented that the Achilles injury in 2004 was due to "continuing aggravation and weakness caused by [the Veteran's] military service." The examiner found that that this was not supported in any objective record. The examiner reported that the Veteran's left ankle was injured playing racquetball after service. The examiner further noted that the examination report documented that the Veteran had full strength in the right ankle and no indications of instability at the time of that clinical examination. The examiner reasoned that the Veteran was well enough from his right ankle injury in 2004 to participate in racquetball which would have been a severe stressor on his joints. The injury on the left ankle clearly occurred as a result of playing racquetball and there is no notation or indication of any contribution from the right ankle. Therefore, the examiner found that it is less likely than not that the Veteran's left ankle injury is due to or the result of, his right ankle condition.

The Veteran was afforded a foot disability examination in January 2020. The Veteran was diagnosed with bilateral plantar fasciitis, degenerative arthritis, and calcaneal spurs. The examiner rendered a negative medical opinion. The examiner noted that the Veteran has plantar fasciitis, calcaneal spurs, and arthritis of the left foot, arthritis is due to aging, plantar fasciitis and calcaneal spurs are due to friction from use so it is less likely than not that the arthritis due to aging and the plantar fasciitis , calcaneal spurs due to friction from use are proximate to a tendon rupture of the right ankles.

Entitlement to service connection for left foot plantar fasciitis, degenerative arthritis and calcaneal spurs, and left ankle osteoarthritis, is warranted. Service treatment records show that the Veteran was treated for a right ankle injury during service. Post service, left foot plantar fasciitis, degenerative arthritis and calcaneal spurs, and left ankle osteoarthritis have been diagnosed. Further, a private provider, has associated the Veteran's disabilities with the Veteran's activities in service, indicating that the onset of the disabilities can take an extended period and also associated the disabilities with the service-connected right ankle disability manifestations. In rendering the opinions, the private provider provided reference to medical literature and a reasoned rationale; thus, the Board finds the opinions to be probative.

Although a VA examiner found that the private provider's report of continued aggravation and weakness caused by military service was not supported by any objective evidence, the VA examiner did not comment on any impact of the Veteran's activities in service, did not adequate discuss any long-term impact of the Veteran's right ankle disability on his left foot and left ankle, and did not reference or discuss the medical literature identified by the private provider. 

Therefore, the Board finds that the evidence weighs in favor of the claim for service connection for left foot and left ankle disabilities, Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for left foot and left ankle disabilities is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to an evaluation in excess of 10 percent
 examiner did not comment on any impact of the Veteran's activities in service, did not adequate discuss any long-term impact of the Veteran's right ankle disability on his left foot and left ankle, and did not reference or discuss the medical literature identified by the private provider. 

Therefore, the Board finds that the evidence weighs in favor of the claim for service connection for left foot and left ankle disabilities, Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for left foot and left ankle disabilities is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to an evaluation in excess of 10 percent for right ankle strain with Achilles tendon rupture, is remanded.

The issue of entitlement to an evaluation in excess of 10 percent for right ankle strain with Achilles tendon rupture is remanded to the Agency of Original Jurisdiction (AOJ) to correct a duty to assist error that occurred prior to the May 2020 rating decision on appeal. The AOJ obtained a January 2019 examination prior to the May 2020 rating decision on appeal. However, subsequent to the examination and prior to the decision, treatment notes indicate that the Veteran's disability may have become more severe. Notably, subsequent records show that the Veteran was noted to have ankle instability and the Veteran reported that he was taking pain medication. However, the subsequent private examination report is not adequate to evaluate the Veteran's ankle disability. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, because the evidence of record at the time of the rating decision on appeal suggested that the Veteran's right ankle disability had worsened in severity since the January 2019 VA examination, the AOJ's failure to obtain an updated VA examination constitutes a pre-decisional duty to assist error.  Accordingly, remand for a new VA medical examination is warranted. 

2. Entitlement to a TDIU is remanded.

The Board finds TDIU was raised by the record prior to the May 2020 rating action on appeal and relates to the period for appeal for the increased rating claim before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, the Veteran's VA right ankle examiner noted the Veteran had impairment of occupational ability. As a result, the AOJ's failure to develop and adjudicate entitlement to a TDIU constitutes a pre-decisional duty to assist error, and remand is warranted.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a new VA examination by an appropriate clinician to determine the current severity of his right ankle 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 test and report the Veteran's right ankle range of motion on active motion, passive motion, and with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).  

The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

2. Develop and adjudicate the issue of entitlement to TDIU as an element of the Veteran's increased rating claim for his service-connected right ankle strain disability in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009).

 

 

MICHELLE P. KATZ

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Robert J. Burriesci, 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
additional facts are required), or the examiner (does not have the knowledge or training).

2. Develop and adjudicate the issue of entitlement to TDIU as an element of the Veteran's increased rating claim for his service-connected right ankle strain disability in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009).

 

 

MICHELLE P. KATZ

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Robert J. Burriesci, 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.