Citation Nr: 1805996	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  10-07 094	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for bilateral plantar posterior calcaneal spurs.

2.  Entitlement to service connection for erectile dysfunction.

3.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

4.  Entitlement to service connection for atrial flutter.

5.  Entitlement to service connection for misaligned right foot.

6.  Entitlement to service connection for hammertoes, left foot.

7.  Entitlement to service connection for chronic obstructive pulmonary disease.

8.  Entitlement to service connection for prostate cancer.

9.  Entitlement to service connection for a cervical spine disability.

10.  Entitlement to service connection for fractured ribs.

11.  Entitlement to service connection for a right shoulder disability.

12.  Entitlement to service connection for elevated cholesterol.

13.  Entitlement to a rating in excess of 20 percent for herniated disc of the lumbar spine.

14.  Entitlement to an initial rating in excess of 20 percent for left radiculopathy.

15.  Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy.

16.  Entitlement to an initial rating in excess of 30 percent for persistent depressive disorder with anxious distress (previously rated as dysthymic disorder).

17.  Entitlement to an initial compensable rating for lumbar spine surgical scar.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M.G. Mazzucchelli, Counsel






INTRODUCTION

The Veteran served on active duty from November 1966 to October 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2008, July 2013, and February 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.


FINDINGS OF FACT

1.  In May 2015 and June 2017, prior to the promulgation of a decision in the appeal, the Board received requests from the Veteran to withdraw the issues of entitlement to service connection for erectile dysfunction, PTSD, atrial flutter, misaligned right foot, hammertoes of left foot, chronic obstructive pulmonary disease, prostate cancer, a cervical spine disability, fractured ribs, a right shoulder disability, and elevated cholesterol; entitlement to a rating in excess of 20 percent for herniated disc of the lumbar spine; entitlement to an initial rating in excess of 20 percent for left radiculopathy; entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy; entitlement to an initial rating in excess of 30 percent for persistent depressive disorder with anxious distress (previously rated as dysthymic disorder); and entitlement to an initial compensable rating for lumbar spine surgical scar.

2.  The Veteran's bilateral plantar posterior calcaneal spurs did not have onset in service or for many years thereafter, and are not related to service.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the issues of entitlement to service connection for erectile dysfunction, PTSD, atrial flutter, misaligned right foot, hammertoes of left foot, chronic obstructive pulmonary disease, prostate cancer, a cervical spine disability, fractured ribs, a right shoulder disability, and elevated cholesterol; entitlement to a rating in excess of 20 percent for herniated disc of the lumbar spine; entitlement to an initial rating in excess of 20 percent for left radiculopathy; entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy; entitlement to an initial rating in excess of 30 percent for persistent depressive disorder with anxious distress (previously rated as dysthymic disorder); and entitlement to an initial compensable rating for lumbar spine surgical scar, have been met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2.  The criteria for service connection for bilateral plantar posterior calcaneal spurs have not been met.  38 U.S.C.A. §§ 1101, 1110 5107 (2012), 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Withdrawn Issues

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105 (2012).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

In written statements dated in May 2015 and June 2017, the Veteran specifically stated that he wished to withdraw the issues of entitlement to service connection for erectile dysfunction, PTSD, atrial flutter, misaligned right foot, hammertoes of left foot, chronic obstructive pulmonary disease, prostate cancer, a cervical spine disability, fractured ribs, a right shoulder disability, and elevated cholesterol; entitlement to a rating in excess of 20 percent for herniated disc of the lumbar spine; entitlement to an initial rating in excess of 20 percent for left radiculopathy; entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy; entitlement to an initial rating in excess of 30 percent for persistent depressive disorder with anxious distress (previously rated as dysthymic disorder); and entitlement to an initial compensable rating for lumbar spine surgical scar.  There remain no allegations of errors of fact or law for appellate consideration with regard to those issues.  The Board does not have jurisdiction to review those issues, and dismissal is warranted.

II.  Notice and Assistance

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b) (2017).  A March 2008 letter satisfied the duty to notify provisions. 

VA also has a duty to provide assistance to substantiate a claim.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c).  The Veteran's service treatment records and service personnel records have been obtained.  VA treatment records, private medical records, and records from the Social Security Administration have been obtained.  

The Board has considered whether the Veteran should be scheduled for a VA examination with a medical opinion regarding a possible relationship between the calcaneal spurs and his military service.  38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The Board finds, however, that such an examination is not necessary to decide this claim because the evidence of record is sufficient to decide the claim.  In this regard, the Board notes that the first showing of calcaneal spurs in the record is more than 30 years after the Veteran's separation from service, and, in 2003 when such were shown on X-ray; the Veteran reported a 20 year history of foot pain.  Further, since there is no competent (medical) evidence suggesting that the Veteran's calcaneal spurs may be the result of his period of active service or a service-connected disability, an examination is not warranted.  See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require an examination).


III.  Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303.  "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

The Veteran's service treatment records do not note any complaint or finding of calcaneal spurs.  In November 1967 when he was seen with back complaints, he was noted to be unable to stand on his right heel.  The diagnosis was possible herniated disc.  In March 1968 he had foot numbness associated with back injury.  The diagnosis was mild lumbosacral sprain.  He was seen for athlete's foot in May 1968.  The service separation examination in May 1969 noted normal feet.

A March 1970 VA examination noted dermatitis and fungal infection of the right foot.  There were no other foot findings.

Treatment records from the Veteran's reserves service from the early 1970's to 1995 show he generally reported "foot trouble" on his periodic reports of medical history.  The record contains periodic examination reports dated in October 1972, January 1976, January 1980, July 1983, July 1990, and June 1995.  These examinations note left foot hammertoes but there is no finding of calcaneal spurs on any of the examinations.  

(The Veteran's claims for service connection for hammertoes of the left foot, and right foot misalignment, were withdrawn in May 2015, as noted above.)  

In September 2003 the Veteran underwent a VA examination in conjunction with claims for increased rating for his service connected back disability, and claims for service connection for hammertoes and misaligned right foot.  The Veteran told the examiner that his feet had been hurting for 20 years.  X-rays taken at the time of the September 2003 examination showed bilateral posterior calcaneal spurs.  The examiner opined that the spurs were not related to the service connected back disability. 

In February 2008, the Veteran filed additional claims, which included the claim for service connection for the bilateral calcaneal spurs.  

The Board finds that service connection is not warranted for bilateral calcaneal spurs.  The evidence does not show that calcaneal spurs manifested during service or for many years after his discharge from service.  The earliest clinical evidence of diagnosed calcaneal spurs dates more than 30 years after discharge.

Furthermore, the record does not contain sufficient evidence linking the currently diagnosed bilateral calcaneal spurs to service.  While the Veteran essentially asserts that his calcaneal spurs are related to service, the question of whether these are related to his military service does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Moreover, the evidence does not establish an in-service injury, disease or event to which any current calcaneal spurs could plausibly be related; that is, there is no indication that they might be related to service besides the claim, which is insufficient to trigger VA's duty to assist.  Significantly, on the September 2003 examination, when the calcaneal spurs were first noted, the Veteran reported a history of foot pain for 20 years, which would date the onset of such pain to the early 1980s, more than a decade after his separation from service.  Further, as noted above, calcaneal spurs were never noted on the periodic examinations conducted during his reserves service.

Accordingly, service connection for bilateral plantar posterior calcaneal spurs is not warranted.  In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).


ORDER

The issues of entitlement to service connection for erectile dysfunction, PTSD, atrial flutter, misaligned right foot, hammertoes of left foot, chronic obstructive pulmonary disease, prostate cancer, a cervical spine disability, fractured ribs, a right shoulder disability, and elevated cholesterol; entitlement to a rating in excess of 20 percent for herniated disc of the lumbar spine; entitlement to an initial rating in excess of 20 percent for left radiculopathy; entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy; entitlement to an initial rating in excess of 30 percent for persistent depressive disorder with anxious distress (previously rated as dysthymic disorder); and entitlement to an initial compensable rating for lumbar spine surgical scar, are dismissed.

Service connection for bilateral plantar posterior calcaneal spurs is denied.



____________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs