Citation Nr: 1118543 Decision Date: 05/13/11 Archive Date: 05/17/11 DOCKET NO. 00-24 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for heel spurs. 2. Entitlement to service connection for plantar fasciitis. 3. Entitlement to an effective date prior to December 28, 2004, for the award of service connection for posttraumatic stress disorder (PTSD) with alcohol dependence based on disagreement with a May 2005 rating decision. 4. Entitlement to an effective date prior to December 28, 2004, for the award of service connection for posttraumatic stress disorder (PTSD) with alcohol dependence based on disagreement with a September 2010 rating decision. 5. Entitlement to an initial evaluation in excess of 70 percent for PTSD with alcohol dependence. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The Veteran had active military service from May 1976 to August 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal of May 2005 and April 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Procedural History The Board issued a decision in May 2009 which denied the Veteran's claims of service connection for heel spurs and plantar fasciitis. The Veteran appealed the Board's May 2009 denial to the United States Court of Appeals for Veterans Claims (Court) and, in May 2010, the Court issued an order granting a Joint Motion for Remand (Joint Motion), vacating the portion of the Board's May 2009 decision which denied the Veteran's claims for heel spurs and plantar fasciitis and returning these issues to the Board for further consideration. The service connection issues, as well as the issues of entitlement to an earlier effective date for PTSD and entitlement to an evaluation in excess of 70 percent for PTSD were last brought before the Board in August 2010, at which time these claims were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of her claim. These issues are once again before the Board for appellate consideration. The issues of entitlement to an increased evaluation for PTSD with alcohol dependence and entitlement to an earlier effective date for the award of service connection for PTSD with alcohol dependence are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Heel spurs were not manifested in active service and any current heel spurs are not otherwise etiologically related to such service. 2. Plantar fasciitis was not manifested in active service and any current plantar fasciitis is not otherwise etiologically related to such service. 3. In a statement received by VA on October 6, 2010, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of the issue of entitlement to an earlier effective date for the award of service connection for PTSD with alcohol dependence based on disagreement with a May 2005 rating decision. CONCLUSIONS OF LAW 1. Heel spurs were not incurred in or aggravated by the Veteran's active military service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303 (2010). 2. Plantar fasciitis was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303 (2010). 3. The criteria for withdrawal of a Substantive Appeal have been met with respect to the issue of entitlement to an earlier effective date for the award of service connection for PTSD with alcohol dependence based on disagreement with a May 2005 rating decision. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). 38 C.F.R. § 3.159 (2010). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the instant case, the Veteran received notification prior to the initial unfavorable agency decision in April 2008. The RO's January 2008 notice letter advised the Veteran what information and evidence was needed to substantiate the claim decided herein and what information and evidence must be submitted by her, namely, any additional evidence and argument concerning the claimed conditions and enough information for the RO to request records from the sources identified by the Veteran. She was specifically told that it was her responsibility to support the claim with appropriate evidence. Finally the letter advised her of what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. Furthermore, the January letter to the Veteran also included notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2010). Service treatment records are associated with claims file. All post-service VA treatment records as well as private treatment records identified by the Veteran have also been obtained. The appellant has not identified any additional records that should be obtained prior to a decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran was afforded a VA examination for her service connection claim in September 2010. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2010); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The September 2010 VA examination is adequate for the purposes of determining service connection, as it involved a physical examination of the Veteran and review of her pertinent medical history, and provides an etiological opinion with supporting rationale. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As a final note, the Board again observes the instant claims were previously remanded in August 2010. Specifically, the Board determined the Veteran should be provided a VA examination with respect to her service connection claims. As discussed above, the Veteran was provided such an examination in September 2010, which the Board has found adequate for the purposes of determining service connection. As such, there has been substantial compliance with the August 2010 remand, and adjudication of the instant case may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis I. Service Connection Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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 disease or injury was incurred in service. 38 C.F.R. § 3.303(d). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010). The Veteran maintains that she currently suffers from heel spurs and plantar fasciitis as a direct result of her active service. Specifically, she asserts that her currently diagnosed heel spur syndrome and plantar fasciitis were caused by her wearing military boots in service, leading her to being required to wear moccasins "for a long time." While the evidence reveals that the Veteran currently suffers from heel spur syndrome and plantar fasciitis, the competent, probative evidence of record does not etiologically link the Veteran's current disabilities to her service or any incident therein. Service treatment records indicate the Veteran sought treatment in December 1977 and June 1978 for painful heels secondary to wearing her military boots. Additionally, records indicate she was treated for cysts on the back of both heels in April 1978 and June 1978. However, there is no evidence to indicate a chronic heel and/or foot disability was diagnosed. While the Veteran declined to undergo a separation examination in August 1980, a review of her service treatment records indicated no significant findings. As such, the Board finds that the Veteran did not suffer from chronic plantar fasciitis or heel spurs during active service. Furthermore, there is no continuity of symptomatology since active service in the instant case. In this regard, the Board observes heel spur syndrome and plantar fasciitis were not diagnosed until May 2007, over 25 years since the Veteran's separation from active service. In fact, an August 1996 VA examination report found X-ray evidence failed to indicate any abnormalities of the feet. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not suffered the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). The Veteran was afforded a VA examination in September 2010, during which the examiner noted the Veteran's current complaints and in-service history of foot troubles. After reviewing the Veteran's service treatment records and claims folder, and examining the Veteran, the VA examiner stated that it is less likely than not that the Veteran's current plantar fasciitis and/or heel spurs are etiologically related to her active service. In this regard, the VA examiner noted that there is no indication that the Veteran was seen, evaluated, diagnosed or treated for either plantar fasciitis or heel spurs in service and, at present, she demonstrates no evidence or symptomatology relative to the heel cysts and/or plantar warts she was treated for in service. In sum, the Board finds that there is no evidence of plantar fasciitis, heel spurs, or any other chronic foot and/or heel disorder in service. The threshold question therefore is whether there is sufficient competent evidence to establish an etiological link between the Veteran's current plantar fasciitis and/or heel spurs and her active service. The preponderance of the evidence is against this aspect of the Veteran's claim. The Veteran has produced no competent evidence or medical opinion in support of her claim that these conditions are the result of in-service injury or illness, and the length of time between her active service and current treatment weighs against granting the Veteran's claim. Further, a VA examiner has opined that it is less likely than not that the Veteran's current foot disorders are etiologically related to her active service. The Board acknowledges that the Veteran herself has claimed her currently diagnosed plantar fasciitis and heel spurs are etiologically related to her active service. However, as a layperson, the Veteran has no competence to give a medical opinion on the diagnosis or etiology of this condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, she is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). While laypersons have been deemed to be competent to observe certain disabilities, e.g., flat feet, varicose veins, these disabilities are distinguished from the instant case because they are, by their very nature, observable to the average layperson. See Barr, supra (lay testimony is competent to establish the presence of observable symptomatology where the determination is not medical in nature and is capable of lay observation). However, the claimed disabilities in the instant case, heel spurs and plantar fasciitis, are not clearly observable to the naked eye or by an average layperson. Rather, the layperson becomes cognizant of these disabilities through symptoms observable to a layperson, such as foot pain. These symptoms must then be evaluated by a medical professional to ascertain the appropriate diagnosis and etiology of this condition. Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection with respect to the disabilities currently on appeal. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for heel spurs and plantar fasciitis, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). II. Earlier Effective Date Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2010). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (2010). Following the August 2010 Board remand, the Lincoln, Nebraska, VA Regional Office awarded an earlier effective date of December 28, 2004, for the award of service connection for PTSD. See September 29, 2010, rating decision. On October 6, 2010, the Veteran submitted a signed statement indicating she had reviewed the rating decision in question and this action satisfied her appeal. See October 2010 VA Form 21-44, Appeal Satisfaction. The appellant has withdrawn the issue of entitlement to an earlier effective date for the award of service connection for PTSD; hence, there remain no allegations of errors of fact or law for appellate consideration. In dismissing the Veteran's claim for an earlier effective date, the Board acknowledges a statement submitted by the Veteran's representative, dated October 11, 2010, and received by the RO on October 15, 2010. In this statement, the Veteran's representative states that the "Veteran rescinds her earlier statement of satisfaction" with the September 2010 rating decision awarding an earlier effective date. However, the Board notes that, when an appeal is under the jurisdiction of the regional office, "an appeal withdrawal is effective when received by the agency of original jurisdiction." See 38 C.F.R. § 20.204(b)(3) (2010). As such, the Veteran's appeal withdrawal was effective October 6, 2010, the date it was received by the RO in Lincoln, Nebraska. There is no regulatory authority providing for the rescission of an appeal withdrawal, and the Veteran's representative has not cited any authority with respect to this issue. As the Veteran has withdrawn her appeal with respect to the issue of an earlier effective date for the award of service connection for PTSD, effective October 6, 2010, the Board does not have jurisdiction to review this issue and the appeal is dismissed. ORDER Service connection for heel spurs is denied. Service connection for plantar fasciitis is denied. The appeal of entitlement to an effective date earlier than December 28, 2004, for the award of service connection for PTSD with alcohol dependence based on disagreement with a May 2005 rating decision is dismissed. REMAND As discussed above, the Board has dismissed the Veteran's appeal of entitlement to an earlier effective date for the award of service connection for PTSD with alcohol dependence. In this regard, in a September 2010 rating decision, the RO awarded an earlier effective date of December 28, 2004, for the award of service connection for PTSD, and the Veteran subsequently submitted a statement expressing satisfaction with this decision. However, the Veteran's representative then submitted two statements, both dated October 11, 2010, disagreeing with the effective date assigned by the September 2010 rating decision. The Board will accept the Veteran's representative's statements as a Notice of Disagreement (NOD) with the effective date assigned by the September 2010 rating decision. The RO has not issued a statement of the case (SOC) to the Veteran which addresses this NOD. The Court has made it clear that the proper course of action when a timely notice of disagreement has been filed is to remand the matter to the RO. Manlincon v. West, 12 Vet. App. 238 (1999). Appropriate action, including issuance of a statement of the case, is now necessary with regard to this issue. 38 C.F.R. § 19.26 (2010). The Veteran will then have the opportunity to file a timely substantive appeal if she wishes to complete an appeal. As a final note, the Veteran's claim for an increased evaluation for PTSD with alcohol dependence is impacted by the outcome of her claim for an earlier effective date, and therefore, the increased rating claim is inextricably intertwined with the effective date claim. The United States Court of Appeals for Veterans Claims has held that all issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). As the increased rating claim is "inextricably intertwined" with the earlier effective date claim, the increased rating claim must also be remanded to the AOJ in accordance with the holding in Harris. Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case with respect to the issue of entitlement to an effective date earlier than December 28, 2004, for the award of service connection for PTSD with alcohol dependence based on disagreement with a September 2010 rating decision. All appropriate appellate procedures should then be followed. The Veteran should be advised that she must complete her appeal of this issue by filing a timely substantive appeal following the issuance of a statement of the case. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, she and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 Supp. 2010). ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs