Citation Nr: 1309054 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 02-03 275A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a low back disorder, including as secondary to the service-connected left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to January 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2001 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran has been granted service connection for a left ankle disability, rated as 20 percent disabling since February 2000. 2. The Veteran has been diagnosed with vertebral spurring, disc space narrowing, and mild spondylosis of the lumbar spine. 3. The credible and probative weight of evidence of aggravation of the lumbar spine disease by the service-connected left ankle disorders is relatively equal. CONCLUSION OF LAW The criteria for service connection for a low back disorder secondary to aggravation by a service-connected left ankle disability are met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. The Veteran served as a U.S. Army telephone lineman with service in Korea from July 1970 to August 1971. He contends that his low back disorder is caused or aggravated by a service-connected left ankle disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, 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). A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997). Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases, such as arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). There was an amendment to the provisions of 38 C.F.R. § 3.310 in 2006. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is rated requiring the establishment of a baseline level of disability prior to aggravation and a showing that the secondary condition was not due to the natural progression of a disease. Service treatment records showed that the Veteran sought treatment for low back pain in June 1973 while stationed at a base in the United States. A clinician ordered an X-ray but the results were not recorded. The clinician prescribed oral analgesics and surface ointment. There was no follow-up. One month later, the Veteran sought treatment for a twisted left ankle incurred while playing basketball suggesting that the back pain had resolved or at least did not impair participation in sports or military duties. An August 1975 annual physical examination was silent for any back or spinal symptoms or abnormalities. The Veteran sought treatment for back and lower abdominal pain from July to September 1976. Examiners noted no history of back trauma. The clinicians diagnosed and followed-up for lower abdominal digestive distress, prostate infection, and heart abnormalities. The back discomfort was not associated with the vertebrae or muscles of the spine. A January 1977 discharge physical examination was silent for any back or spinal symptoms or abnormalities. In February 1985, the RO granted service connection and a 10 percent rating for post-traumatic arthritis of the left ankle. In September 1989, the Veteran submitted a claim for service connection for a back disorder, contending that it first manifested during his service in Germany in 1975. The Veteran reported that he received inpatient VA treatment for his back in 1987 and 1988. Records of this care were obtained and showed treatment for lower abdominal pain and "pain in the back of the chest." Clinicians diagnosed a respiratory infection and investigated heart and digestive system dysfunction. A clinician also diagnosed general musculoskeletal pain and prescribed anti-inflammatory medication. There were no X-rays, inpatient care, or follow-up. In December 1989, the RO denied service connection for a back disorder. In February 2000, the RO received the Veteran's claim for an increased rating for his left ankle and for service connection for his legs, back, and neck as secondary to the ankle disability. Private and VA treatment records were obtained that showed that the Veteran had worked in construction occupations including the use of a pneumatic hammer for road repairs. There were no treatment encounters for the back. In April 2000, a VA examiner performed a general medical examination and noted decreased range of motion of the left ankle and a slight decrease in flexion of the lumbar spine. X-rays of the spine showed mild instability and anterior marginal spurs of the superior end plate at L2, L4, and L5. The examiner diagnosed chronic low back pain from mild lumbar spondylosis but did not offer an opinion on the origin of the spinal disease or any relationship to the left ankle. In April 2001, the RO denied service connection for a chronic back disorder because the evidence did not show that the lumbar spondylosis manifested in service, was a residual of a service injury, or was secondary to the left ankle. In a June 2003 RO hearing, the Veteran stated that his left ankle disability caused pain to radiate to his back when he had to jump in and out of construction footings at work. In August 2003, the Veteran underwent a VA spine examination. At that time, the Veteran reported first experiencing low back pain 14 to 15 years earlier which would have been in 1988-89. He reported falling from a telephone pole in 1970 or 1971, although there is no service record evidence of treatment involving a fall from a pole or injury to the back in 1970 or 1971. The Veteran reported experiencing low back pain in June 1973 and July 1976 but without a traumatic injury and no diagnosis of a chronic disorder. On examination, there was a slightly less than normal flexion of the lumbar spine but no muscle spasms or abnormal gait. X-rays continued to show degenerative arthritis at L4 and L5. The August 2003 VA examiner confirmed a current diagnosis of low back pain caused by degenerative osteoarthritis but offered no opinion as to the etiology of the current disability. In an October 2003 letter, the Veteran's private primary care physician, Dr. D.D., noted that the Veteran's back pain first manifested as early as March 1970. This is inconsistent with the service treatment records that showed a one week limitation of duties on that date because of knee but not back pain. In a February 2004 letter, a private chiropractor, Dr. K.G.E., inaccurately noted that the Veteran fractured his left ankle in 1970. The chiropractor noted that the Veteran's normal gait was altered, "thereby placing an additional strain on his pelvis and lower back," and "will likely result in an exacerbation of degenerative changes in his lumbar spine." The chiropractor did not accurately discuss the Veteran's history or suggest that prior medical records were reviewed. Also, the opinion is in the future tense predicting future but no current aggravation. The same chiropractor submitted a substantially identical statement in July 2006. The Veteran again sought treatment for low back pain in October 2005. X-rays at that time revealed calcification of the annulus fibrosis, with the rest of the lumbosacral spine "otherwise unremarkable." The Veteran has continued to have low back pain, as is noted in an August 2006 VA pain assessment. In March 2008, the Board remanded the appeal to obtain additional clinical records of private medical care from the primary care physician and chiropractor and to obtain a VA examination and opinion on the relationship, if any, between the lumbar disease and the left ankle disability. In February 2008, the Veteran again sought treatment for low back pain from Dr. K.G.E. The Veteran reported low back pain for the prior "couple months." Following diagnostic testing, the chiropractor assessed the Veteran as having "Lumbago" and "Lumbar Somatic Segmental Dysfunction." Low back pain was also listed on his April 2008 VA problem list. As such, it is evident that the Veteran has a current low back disability. The question is whether it is proximately due to his service-connected ankle disability, as he suggests, or whether it is otherwise causally connected to his period of active service. In September 2008, the Veteran underwent a VA examination of multiple joints including the lumbar spine. Following a clinical examination and x-ray, the VA examiner diagnosed mild spondylosis of the lumbar spine. The examiner noted that the "low back condition was not caused by or aggravated by a service-connected left ankle condition." The examiner further wrote, "It should be noted that in 2002 the patient was afforded 100% Social Security disability for employability because of a neck problem for which he required surgery, bilateral knee problem, back, ankle problem, mental disorder, high blood pressure, diabetes, hiatal hernia and deafness. It is therefore, in my opinion, that it is less likely as not that the patient's low back condition is related to the service-connected disability of the left ankle." The basis for the VA examiner's opinion is not clear. He merely recited a listing of disabilities for which the Veteran receives Social Security Disability benefits. There is no opinion as to whether the Veteran's left ankle disability causes an altered gait, and whether such an altered gait as likely as not caused or aggravated the current low back disability. There is also no mention in the report of the in-service complaints of back pain, nor an opinion as to whether the current disability may have initially manifested during his period of active duty. Therefore, in November 2009, the Board remanded the appeal to obtain clarification from the VA examiner. The Board requested an opinion whether the left ankle disability including any gait caused or aggravated the lumbar spine disease beyond its natural course, and if not, whether the lumbar spine disease was incurred in service. In September 2010, the same VA examiner noted a review of the claims file and noted only that all his previous opinions remained unchanged with no further explanation. In January 2011, the examiner noted that the lumbar spine disability was not incurred in service with no discussion of the encounters for treatment in service. In February 2011, the examiner noted that he had been practicing orthopedics for 51 years and had not found that an ankle disorder was a primary cause for back pain but did not address aggravation. He noted that unspecified medical literature does not relate the two disorders. He further noted that the two treatment encounters in 1973 and 1976 "causes a nexus between a mild low back condition and the complaints made." He explained that it was his practice to relate conditions when there is a documented continuum of treatment or a history of complaints to create a connection. As written, the opinion seems to state that a nexus is present in this case but it is in conflict with the absence of a documented continuum of complaints or treatment and that the 1976 encounter was not found to be associated with lumbar spine or musculature. The opinion is not clear and may be missing key words. The Board concluded that an additional opinion was necessary. In May 2012 and again in September 2012, the Board provided the claims file to VA orthopedic specialists and requested a thorough review and opinions on whether the Veteran's lumbar spine disease first manifested in service or was caused or aggravated by the left ankle disability beyond the normal progression of the spinal disease. The Board explained the shortcomings in the earlier opinions and requested a complete explanation with citations to medical treatises or literature if consulted to form and opinion. In June 2012, a VA orthopedic physician noted a review of the claims file and noted the treatment encounters in 1973 and 1976 as well as occasional post service complaints at some times but not at others. The Veteran worked on machinery, climbing poles, driving a forklift, and in construction up to 2002. The physician concluded without explanation that the current spinal disease had no substantial relationship to the treatment in service. The physician concluded that generally there was no substantial evidence that an altered gait was "connected" to spinal disease because there would be a higher population of the spinal disease in patients with knee, ankle, foot, and hip disabilities than are actually seen. The physician did not refer to any particular medical reference. The physician also noted the Veteran's history of work in physically demanding jobs and that he is overweight and that the spinal disease was more likely related to those latter causes and the process of aging. In October 2012, another orthopedic physician reviewed the claims file and noted the Veteran's work history. This physician noted the Veteran's inconsistent reports of no back injury and an injury from falling from a pole in 1970 that was not noted in the service records. The physician noted that the imaging study spinal deficits since 2003 develop over a long time and are degenerative rather than traumatic. He explained that back pain as a complaint has multiple causes including muscular or arthritic pain, trauma, or discogenic. The physician concluded that in the absence of trauma, the current disorder was multifactorial and not primarily related to service. Regarding causation or aggravation by the left ankle, the physician noted that a VA examiner observed a normal gait in 2003 but the chiropractor noted an abnormal gait almost one year later in 2004. The physician considered this a "confounding factor." The physician noted that the majority of his patients in the VA system have back pain associated with leg length discrepancies and co-mobidities such as overweight, posttraumatic stress disorder, and muscle or arthritic pain. The physician concluded that it was less likely that the ankle injury was the cause or aggravation factor in the spinal disability. The Board concludes that direct service connection for a low back disorder is not warranted. Although the Veteran is competent to report the occurrence of injuries to the back and treatment encounters that he experienced in service, the Board assigns low credibility to the reports as they are inconsistent with his own denials of any back injury and the absence of any injury causing chronic residuals. There is no evidence to support an injury from a fall from a telephone pole in 1970 or 1971. The Board places no probative weight on the notation by the private primary care physician in October 2003 that the Veteran's chronic back pain started in 1970 because it is inconsistent with the service treatment records and the Veteran's later reports. The only treatment encounter for low back pain possibly associated with the lower lumbar spine or musculature was in June 1973. Results of an X-ray were not recorded and the treatment was with oral anti-inflammatory medication and surface ointment. There was no follow-up, restriction of duty, or later reports or observations of recurrent low back pain. The clinicians in the treatment encounters in 1976 associated the complaints of back pain with possible digestive, heart, or prostate problems. The Veteran reported in 2003 that he first experienced back pain in the late 1980s, more than 10 years after service. Therefore, there is no credible lay or medical evidence of the onset of a chronic back disorder in service, within one year of discharge from service, or a continuity of symptoms since service. There is credible medical evidence of a current disability. The evidence shows limitation of spinal flexion and multi-level spinal disease in imaging studies as early as April 2000, confirmed by later clinical examinations and imaging. The Veteran's private physician and chiropractor and the VA examiner in 2008 did not offer opinions addressing a direct relationship to military service. The Board places very low weight on the supplemental opinions of the VA physician in 2010 and 2011 because he was not responsive to specific questions and because one conclusion contained either a dispositive typographical error or was internally contradictory. The examiner did refer to the absence of trauma and credible lay or medical evidence of a "continuum" of symptoms since service. The Board places some probative weight on the opinions of the two VA orthopedic physicians in 2012 who noted the onset of back symptoms well after service, the history of physically demanding work, and the slow development and progression of spinal disease in a patient without a history of trauma. Although their explanations were brief, the Board concludes that direct service connection is not warranted because there was no back trauma in service, the single treatment encounter in 1973 resolved with no further symptoms that were associated with the spine or back musculature until 1988. There was also an intervening history of heavy physical work and weight gain cited by both physicians as reasonable alternative causes. Regarding service connection on a basis secondary to the left ankle disability, there is evidence both for and against aggravation beyond the normal progression of the spinal disease that first manifested in 1988. In support of aggravation of the spine by the ankle, examiners did not note an abnormal gait in 2003 but did observe the abnormality in 2004. It is not clear how this is a "confounding" fact as the history of the left ankle disability shows gradually worsening symptoms since his injury in service. Nevertheless, the VA orthopedic physician in October 2012 acknowledged and did not challenge the theory that an abnormal gait could be a factor. He only challenged the later onset of the abnormal gait. Also in 2004 and again in 2006, the chiropractor concluded that the abnormal gait from the left ankle injury could exacerbate the lumbar spine disease in the future. Implicit in this opinion is that the abnormal gait increases the severity of the spinal disease beyond that caused by the normal progression. The chiropractor did not explain his conclusion by discussing the mechanics and physiology or cite references so that the Board must presume his opinion is based on his training and clinical experience. On the other hand, the two VA orthopedic physicians in 2012 found no relationship at all between the ankle and the lumbar spine disorders. Both physicians referred to their clinical experience in the observation and treatment of many similar cases and assigned greater weight to the effects of body weight and a history of heavy physical work. The probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In assessing evidence such as 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. 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. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Although the chiropractor did not have the claims file as was available to the VA orthopedic physicians, all examiners were aware of the history of the left ankle and lumbar spine disease and the onset of the abnormal gait. None of the examiners provided a detailed explanation of the mechanics and physiology of an abnormal gait on the lumbar spine, but the chiropractor noted in 2004 and 2006 that it would exacerbate the spinal disease. The VA orthopedic physician in October 2012 did not challenge this theory but rather the timing of the onset of the abnormal gait. All probative opinions relied in part on the personal clinical experience of the examiner. All opinions have strengths and weaknesses, and the Board concludes that their probative weight is relatively equal. As this case has been reviewed by multiple private and VA examiners with training in diseases of the spine, the Board concludes that further remands to obtain additional explanations of the mechanics and impact of an abnormal gait in this Veteran's case would likely yield only additional conflicting opinions of relatively equal probative weight. The Board intimates no opinion on the baseline level of disability of the spine when first aggravated by the abnormal gait as this requires medical assessment and expertise. Therefore, as the evidence both for and against aggravation of the lumbar spine disease by the service-connected left ankle, the Board concludes that service connection on a secondary basis is warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a low back disorder as secondary to the service-connected left ankle disability is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs