Citation Nr: 21014479 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 17-29 515 DATE: March 12, 2021 ORDER Entitlement to service connection for a bilateral foot condition, to include retrocalcaneal exostosis of the bilateral feet, secondary to lumbar spondylosis, is denied. FINDING OF FACT The probative evidence of record does not establish that the Veteran’s bilateral retrocalcaneal exostosis is proximately due to, or aggravated by, his service-connected radiculopathy. CONCLUSION OF LAW The criteria for service connection for bilateral retrocalcaneal exostosis are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from February 1974 to November 1974. In January 2019, the Veteran testified at a videoconference hearing in St. Petersburg, Florida, before the undersigned Veteran’s Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. The Veteran’s claim was previously before the Board of Veterans’ Appeals (Board) in May 2019 and October 2020 wherein it was were remanded for additional development. Service Connection 1. Entitlement to service connection for bilateral retrocalcaneal exostosis The Veteran contends that his bilateral retrocalcaneal exostosis is secondary to his service-connected back condition, to include radiculopathy from his back. The only argument in support of the Veteran’s contention came at the Veteran’s January 2019 hearing. In essence, he reported that his sciatic nerve runs through his feet and when he has flare-ups of radiculopathy, it makes his feet worse. Further, he testified: “all the points in the nerve in the body they’re all connected. You know, what I’m saying. And they tell me it’s 12 points. And, you know, everything works together. But out of those 12 points, you know, from the sciatic they’re running on down.” Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The October 2020 VA examiner was asked to review the medical record and provide diagnoses related to the Veteran’s feet. The examiner assessed the following diagnoses, in chronological order: bilateral foot retrocalcaneal exostosis, November 2012; flat feet, 2016; hammer toes, March 2020; and metatarsalgia, October 2020. However, the Veteran asserted to the examiner that the only condition for which he was requesting service connection was bilateral foot retrocalcaneal exostosis. Therefore, the Board finds that the Veteran has a current diagnosis of bilateral foot retrocalcaneal exostosis, by history, and the first element of service connection has been met. Shedden, supra. Further, the Veteran is service-connected for a low back disability and radiculopathy. The analysis now moves to whether the Veteran’s bilateral foot retrocalcaneal exostosis disability was caused or aggravated by his low back disability or radiculopathy. The Veteran reported the following symptoms at the October 2020 examination: pain in the back of the calves, achilles, soles, and dorsum (whole foot); numbness, tingling, and sharp shooting/electric type pain in the feet that occurs randomly; muscle cramps in the feet and bilateral calves; pain is present with rest and movement. In the September 2014 examination he reported bilateral heel pain for many years, he was evaluated for it in 2012 and diagnosed with bilateral foot retrocalcaneal exostosis; flare-ups were sharp intermittent pain in the heels bilaterally; and he wore diabetic shoes and inserts. At the hearing the Veteran testified to the following symptoms: he was treated by a podiatrist at VA until the podiatrist retired; he wears diabetic shoes and inserts for his symptoms; his doctors say his feet could be from anything, including the sciatic nerve; and his radiculopathy will travel down his legs causing his bilateral lower extremities to get weak. The September 2014, November 2019, and October and December 2020 opinions all agree that the Veteran’s back or radiculopathy conditions did not cause the Veteran’s bilateral foot retrocalcaneal exostosis. As for whether the bilateral foot retrocalcaneal exostosis is aggravated by the Veteran’s back or radiculopathy conditions, the November 2019 examiner answered that question in the negative, finding that there were too many other potential causes to find that the back disability was at least as likely causing the foot disability. However, the opinion did not address whether radiculopathy was a potential source for the foot symptoms. Therefore, the Board remanded the claim for another medical opinion on this issue. The October and December 2020 opinions thoroughly reviewed the medical record and the opinions were based on the October 2020 in-person examination. The December 2020 opinion echoed the reasoning of the October 2020 opinion: the Veteran’s symptoms of radiating pain, numbness, and tingling in the feet is more likely than not due to the service-connected bilateral lower extremity radiculopathy and non-service-connected diabetic peripheral neuropathy (and not separately causing symptoms). All foot conditions, including retrocalcaneal exostosis, can contribute to pain in the achilles and area in close proximity, but it does not justify the pain in the legs and feet primarily. If calcaneal exostosis and/or of the other foot conditions mentioned above did not exist, the Veteran would still have symptoms in the bilateral legs and feet due to bilateral lower extremity radiculopathy related to spondylosis and bilateral diabetic peripheral neuropathy due to diabetes mellitus type II. The Board gives this opinion great probative weight as it based on a review of the medical evidence and cites medical research in support of its findings. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Board gives the opinion great probative weight, the opinion is unable to differentiate whether the symptoms (to the extent that they exist) came from the service-connected radiculopathy or the non-service-connected diabetes. When it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, then 38 C.F.R. § 3.102, which requires the Board to employ reasonable doubt, dictates that such signs and symptoms be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52698 (Oct. 8, 1996)) (in the context of increased ratings claims). However, here the Board finds that the benefit of the doubt rule does not inure to the Veteran because the probative medical record establishes that at the time of the first diagnosis of retrocalcaneal exostosis, the Veteran did not have a diagnosis of radiculopathy, but he did have a diagnosis of diabetes mellitus type II. The Veteran did not complain of or display signs of radiculopathy at the September 2014 examination and was not service-connected for the condition until June 2018. Further, the treatment the Veteran receives for his retrocalcaneal exostosis is diabetic shoes and inserts. Therefore, the Board finds that the benefit of the doubt does not indicate that the Veteran’s radiculopathy, as contrasted with diabetes, has aggravated the Veteran’s retrocalcaneal exostosis beyond their natural progression. The Board has considered the Veteran’s lay opinion that his retrocalcaneal exostosis is related to his service-connected back and or radiculopathy conditions. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the Veteran is competent to report his symptoms. See Jandreau v. Nicholson, 492 F.3D. 1372, 1377 (Fed. Cir. 2007). However, the Board finds the question of the exact diagnosis and the potential relationship between the Veteran’s symptoms and his service-connected disabilities to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, while the Veteran is competent to describe his symptoms, he cannot, as a layperson, provide competent medical evidence establishing a diagnosis or connection between the two. Further, the Veteran’s lone contention for why he believes his retrocalcaneal exostosis is related to his radiculopathy is because “all the points in the nerve in the body they’re all connected” and that when his radiculopathy flares-up, his feet hurt. The Veteran has provided no support for his assertion that all points are connected and how that would aggravate his retrocalcaneal exostosis condition. Even more so, from his testimony and description of symptoms, it is unclear if he is describing symptoms that are any different than radiculopathy itself. To that end, pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. Thus, the weight of the evidence is against the claim for service connection for retrocalcaneal exostosis. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.