Citation Nr: 1307540 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 10-38 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a low back disorder, to include as secondary to a service-connected left foot scar. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from February 1946 to March 1947 and September 1950 to June 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania. In April 2011, the Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge at the RO; a transcript of the hearing is of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issue on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence is at least in relative equipoise on the question of whether the Veteran's degenerative disc and joint disease of the lumbar spine is related to his service-connected left foot scar. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, lumbar spine degenerative disc and joint disease is proximately due to his service-connected left foot scar. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Given the favorable outcome detailed below, an assessment of VA's duties under the VCAA is not necessary. Analysis Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, __ F.3d __, No. 2011-7184, 2013 WL 628429 (Feb. 21, 2013) (noting that the continuity of symptomatology provisions apply to the chronic disorders as listed in 38 C.F.R. § 3.309(a)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, arthritis may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Additionally, service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran contends that his current low back disorder was caused or aggravated by his service-connected left foot scar. Specifically, he alleges that his painful left foot scar caused him to shift his weight to the right, which resulted in abnormal posture and low back problems. The agency of original jurisdiction (AOJ) also considered whether service connection was warranted on a direct basis under 38 C.F.R. § 3.303. Therefore, to avoid any potential prejudice to the Veteran, the Board's analysis below will also address service connection on a direct basis. The Veteran's service treatment records (STRs) reflect that he hurt his back while diving in July 1946. There are no follow-up records of treatment during the first period of service. At the August 1950 induction examination for the second period of service, his spine was normal. In April 1951, he complained of chronic back aches, which were treated with hot showers. At the June 1952 discharge examination, his spine was normal. In July 2008, a VA examination was conducted. The examiner opined that the Veteran's current lumbar disc disease was not related to the back pain he was treated for in service. In this case, the evidence indicates the Veteran's lumbar spine degenerative disc and joint disease was not incurred in service, within one year of service, or for many years thereafter. Although the Veteran complained of back pain during service, the uncontroverted medical evidence indicates that his current lumbar spine disability is not related to the complaints or treatment in service. The Veteran's spine was normal at discharge and he does not allege that his current lumbar spine disability was incurred in or aggravated by service. For these reasons, service connection is not warranted under 38 C.F.R. § 3.303. Rather, the Veteran alleges that his lumbar spine disability was caused or aggravated by his service-connected left foot scar. The Veteran's STRs indicate that he cut the bottom of his left foot in August 1951. The laceration was sutured, but he continued to have a painful, tender scar. In April 1952, it was noted that he still walked on the right side of his foot because of the scar. At his discharge examination in June 1952, his feet were found normal and he denied any significant diseases, wounds, or injuries during service. In VA examinations dated in September 1952 and August 1976, and a May 1976 medical certificate, the Veteran complained of pain and tenderness associated with the left foot scar. In November 1976, the Veteran said that he tried to protect his left foot by standing more on the right side. He said that this caused him back problems. In January 1977, he testified at a Board hearing leaned to the right, which affected his posture and caused back problems. In a January 1977, Dr. B, a private physician, opined that the Veteran's left foot condition caused him to shift his weight to the right side. This abnormal weightbearing caused "his base plane to become unlevel" and threw his back out of line. Dr. B also opined that the pain from his left foot scar affected the Veteran's ability to work as a barber and that he lost a lot of time from work (See letters dated in October 1982, January 1983, and July 1983). In November 1985, Dr. P, a private physician, opined that the painful left foot scar caused the Veteran to favor his right side and resulted in contralateral discomfort of the right hip and knee. A January 1986 VA examiner also opined that there was contralateral pain of the right knee and hip due to the painful left foot scar. In October 2002, the Veteran underwent surgical excision of the left foot scar tissue. VA treatment records indicate that he had difficulty using his crutches, had several falls, and was issued a walker. A December 2002 consultation note indicates he had radiating left-sided low back pain after a fall. An X-ray showed degenerative narrowing at the L4-L5 level. The diagnosis was lumbar facet arthritis. It was noted that he walked with a cane and had an antalgic gait. In a March 2003 VA examination report, the Veteran stated that the left foot discomfort altered his balance and that he found it necessary to wear a back brace due to back pain. The Veteran made similar reports during a June 2005 RO hearing. The report of an August 2005 VA spine examination reflects the Veteran's complaints of a 15 year history of back pain, worsening over the prior five to seven years. He also reported having right knee and hip pain. It was noted that he was a barber and that he had to lean to the right side because of a painful left foot. It was also noted that he wore a lift in his right shoe because his right leg was shorter. He was diagnosed with degenerative joint disease of the lumbosacral spine and degenerative changes of the right hip and knee. The examiner indicated that it was not possible to determine the causal relationship of the left foot scar to the present complaints of lower back pain without speculation; however, the examiner noted that the degenerative changes were minimal and more related to advancing age. The functional scoliosis was due to leg length discrepancy, which was more of structural discrepancy rather than postural. The examiner indicated that the leg length discrepancy could cause increased low back pain, but that this was not associated with the left foot scar. However, the examiner also opined that depending on the level of severity of pain and deformity of the foot, the Veteran might have difficulties bearing weight on the left lower extremity which can also contribute to the aggravation caused by the other conditions. With regard to the minimal degenerative changes evidenced by X-ray, the examiner indicated that the physical examination findings did not correlate with chronic painful left scar that had been present for 53 years. In an October 2005 addendum, the examiner indicated that the lumbosacral spine was "less likely" caused by or a result of the left foot condition. In an August 2005 VA podiatry examination report, the examiner opined that the falls the Veteran sustained while on crutches after foot surgery aggravated his lower back pain. The examiner further opined that the right knee and hip pain "may be" related to the leg length discrepancy. In a January 2010 letter, Dr. P, a private physician, indicated that because of the Veteran's left foot injury, he has had to shift his weight to his right side throughout his life, which resulted in chronic pain and numbness in his right leg and lower back. X-rays of the lumbar spine showed significant facet narrowing and sclerosis, which would be consistent with the fact that he has had to shift his weight to the right. The physician explained that abnormal weightbearing would wear out those joint areas and cause inflammation and significant discomfort and opined that it was related to his prior service related injury. A VA examination was conducted in March 2010. The Veteran was diagnosed with degenerative disc disease of the lumbar spine. Although unclear, the examiner seemed to opine that these degenerative changes were age-related. The examiner also opined that the Veteran's lower back condition "would not be considered caused by or related to, not a result of, nor aggravated by the Veteran's service connected scar, left foot." The rationale provided was that had the Veteran's left foot been normal and never required surgery, the Veteran would likely still have the lower back condition noted. Although this rationale explained the examiner's opinion regarding causation, it did not explain her opinion that the left foot scar did not aggravate the lumbar spine condition. Dr. P submitted opinions in September 2010 and April 2011 that were similar to his January 2010 opinion. In September 2011, he opined that the degeneration of the muscles, discs, bone, and nerves of the lumbar spine would not have occurred if he had not injured his left foot. In April 2011, the physician opined that the shift in weight to the opposite foot caused uneven wear of his back vertebra. In July 2011, the Board remanded the claim in part to obtain a supplemental opinion from the March 2011 VA examiner. Later that month, the examiner reviewed the claims file and other opinions of record. She essentially reiterated her opinion without addressing the Veteran's contention that abnormal weightbearing caused or aggravated his lumbar spine disability. In August 2012, the Board remanded the claim again to obtain another opinion by a different VA examiner. In October 2012, a physician's assistant reviewed the claims file and consulted with the March 2011 VA examiner. He opined that there was "no clinical or historical evidence that can be found indicating that the current spine condition was aggravated by or caused by any lower extremity condition while in service (not caused by or a result of)." He stated that he concurred with the previous opinions and rationale. Again, he did not address the validity of the Veteran's contention that abnormal weightbearing caused, accelerated, or aggravated the degenerative processes of the lumbar spine. In this case, the medical evidence suggests several factors might have affected the degeneration of the Veteran's lumbar spine - age, a leg length disparity, and abnormal weightbearing caused by a painful scar on the Veteran's left foot. Specific to whether the Veteran's service-connected left foot scar caused or aggravated his lumbar spine disability, the record reflects conflicting opinions. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Here, the evidence indicates that the Veteran has had pain associated with his left foot scar since the injury in 1951. He has complained that he has had trouble standing and had to put his weight on the right side since the mid 1970s. During a January 1977 Board hearing, he testified that this abnormal weightbearing caused him to have back problems. He has continued to complain of pain in his right hip, right knee, and lower back due to abnormal weightbearing. This evidence, which is well-documented in the record, supports Dr. P's opinion that the abnormal weightbearing was a causal factor in the degeneration of the Veteran's lumbar spine. For this reason, the Board finds that Dr. P's opinions are probative evidence supporting the Veteran's claim. On the other hand, the August 2005 VA examiner seemed to suggest that the degenerative changes of the lumbar spine were age-related and that the scoliosis was due to a discrepancy in leg length. Regarding aggravation, however, he provided a much more speculative opinion suggesting that the left foot scar, depending on its severity, might contribute to the aggravation of the lumbar spine disability. Then, in a supplemental October 2005 opinion, he reiterated this opinion, but stated that the lower back pain was not exclusively caused or aggravated by the left foot condition. Although the examiner's opinion regarding causation is more definitive, his opinion regarding aggravation is extremely muddled. Also, the examiner did not directly address the validity of the Veteran's contention that abnormal weightbearing caused or accelerated the degenerative processes. For these reasons, the Board finds that the August 2005 VA examiner's opinion has only limited probative value. For similar reasons, the Board also finds that the March 2010 and October 2012 VA examiners' opinions have limited probative value. Significantly, the rationale that the Veteran would have had a lumbar spine disability even without a left foot scar does not address the possibility of aggravation. The fact that this same rationale was reiterated despite multiple requests for clarification demonstrates a fundamental lack of understanding of the questions posed. Furthermore, neither examiner addressed the Veteran's specific contention - i.e., whether abnormal weightbearing could cause, accelerate, or aggravate the degeneration of the lumbar spine. For these reasons, the Board finds that the VA examiners' opinions have little, if any, probative value. The Board finds that the Veteran's lay statements, along with the opinions of Dr. Phillips, permit application of the reasonable doubt doctrine as the evidence for and against the claim is in relative equipoise. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for degenerative disc and joint disease of the lumbar spine disability is met. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for degenerative disc and joint disease of the lumbar spine is granted. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs