Citation Nr: 1306304 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 09-03 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a low back disability, to include on a secondary basis. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to November 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that concluded new and material evidence had not been received to reopen the Veteran's claim for service connection for a low back disability. In August 2010, the Board remanded the case to the RO for additional development of the record. In a February 2012 determination, the Board found new and material evidence had been received and remanded the claim to ensure due process and to obtain additional evidence. The claim was again remanded by the Board in June 2012 for evidentiary development. The case is again before the Board for appellate consideration. FINDINGS OF FACT 1. Service connection is in effect for bilateral pes planus with hallux valgus deformity, evaluated as 30 percent disabling. 2. The Veteran's low back disability was aggravated by his service-connected bilateral pes planus. CONCLUSION OF LAW A low back disability is proximately due to or the result of a service-connected disease of injury. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the fully favorable finding with regard to the claim for service connection for a low back disability, no further discussion of the duties to notify and assist is warranted at this time. Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). In addition, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Allen v. Brown, 7 Vet. App. 439 (1995). VA will not concede that a non-service-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. 38 C.F.R. § 3.310(b). The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity as well as any increase in severity The Veteran has been granted service connection for bilateral pes planus with hallux valgus deformity, evaluated as 30 percent disabling. The Veteran asserts service connection is warranted for a low back disability. During the April 2010 hearing before the undersigned, the Veteran testified that when he was on a confidence course in service, he fell from a pole and landed on his back. He claims this occurred during training while in boot camp. He claims his back has bothered him since service. He also alleges his back disorder is secondary to his service-connected bilateral pes planus. The available service treatment records are negative for complaints or findings pertaining to the low back. A Medical Board report dated October 1968 reflects diagnoses of bilateral hallux valgus with pes planus and callosities of both feet. VA outpatient treatment records reveal the Veteran requested medication for back pain in October 2005. On VA examination in April 2009, it was reported the Veteran had a normal gait. The Veteran reported a history of back trauma in service and after service. Mild abnormal weight-bearing was noted from the unusual shoe wear in the lateral margin of both feet. X-rays of the lumbar spine showed arthritis. Following a review of the claims folder, the examiner stated he was unable to render an opinion as to whether the Veteran's low back disability was related to service without resort to mere speculation. The Veteran was again examined by the VA in March 2012 at which time he related a history of back complaints in service, but no back trauma after service. The diagnoses were mild chronic thoracolumbar strain and mild degenerative disc disease at L4-5 and L5-S1. The examiner opined that the mild thoracolumbar strain was not due to the Veteran's service-connected flat feet, based in part on a review of an in-service Medical Board report which did not include any findings related to the back. He related there was no evidence-based medical literature that he was aware of stating that mild lumbosacral strain was caused by or a result of a flat foot condition with a normal gait. Thus, he concluded that the chronic thoracolumbar strain was not due to flat feet. He reiterated his conclusion after he reviewed the claims folder the next month. A private podiatrist examined the Veteran in April 2012. The Veteran stated he had experienced back problems since an injury in service. He also believed his bilateral foot condition contributed to a malalignment of his low back. An examination of the Veteran's gait demonstrated he had normal heel strike in pronation and mid stance, and late heel off. The pertinent diagnosis was bilateral pronatory gait. Based on his physical examination and gait analysis, the examiner stated he felt the Veteran's lower extremities can contribute to his lower back problems and aggravate the low back injury. The Veteran was most recently examined by the VA in September 2012. The examiner, whose specific qualifications or medical specialty were not noted, reviewed the claims folder. He noted the Veteran had diagnoses of degenerative joint disease and degenerative disc disease of the lumbar spine. An examination revealed the Veteran had a normal gait. He asserted that if the lumbosacral spine condition was being aggravated by the foot condition, in other words, the foot condition was causing the degenerative joint disease and degenerative disc disease of the lumbosacral spine, he would have expected far more in the way of degenerative joint disease in the feet than the bilateral hallux valgus deformities that were seen on X-rays with relatively minimal arthritic change. Thus, the examiner concluded it was less likely as not that the Veteran's foot condition aggravated his low back disability beyond the natural progression of the disorder. The examiner provided a negative opinion as to direct service connection because the examiner explicitly "cannot accept" the Veteran's reported history. The Board acknowledges that the Veteran is an inconsistent historian in that he reported a post-service back injury at the April 2009 VA examination, but told the March 2012 VA examiner that he suffered no back trauma after service. At the Board hearing, he provided sworn testimony about the circumstances of the back injury in service. Further complicating this case are the conflicting medical opinions of record. The April 2012 examiner provided a negative opinion as to direct service connection, based in part on a review of an in-service Medical Board report which did not include any findings related to the back. The September 2012 examiner provided a negative opinion as to direct service connection and explicitly discounted the Veteran's history, which the Board notes included sworn credible testimony. The Board finds the evidence is against a grant of service connection on a direct basis. The different medical opinions as to secondary service connection appear to turn, in part, on whether the Veteran walks with a limp. A private podiatrist stated he does, while two VA physicians claim he does not limp. Based on a physical examination and gait analysis, the podiatrist opined that the Veteran's service-connected foot disabilities can contribute to his lower back problems and aggravate the low back injury. Under the circumstances of this case, and resolving all reasonable doubt in the Veteran's favor, the Board finds that his low back disability has been aggravated by his service-connected bilateral pes planus. As noted above, the rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity as well as any increase in severity due to the natural progress of the disease from the current level. 38 C.F.R. § 3.310(b). ORDER Service connection for a low back disability is granted, on the basis of aggravation. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs