Citation Nr: 1309105 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 05-02 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected pes planus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. N. Hyland, Senior Counsel INTRODUCTION The Veteran had active service from June 1964 to July 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Among other things, service connection for a low back condition was denied therin. The Veteran appealed this determination. This matter was previously before the Board and was remanded in February 2008, September 2010, and June 2012. Adjudication on the merits may now proceed as this development fully or at least substantially has been completed. See Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." In January 2013, the Veteran submitted additional relevant evidence. This evidence has not been considered by the Agency of Original Jurisdiction (AOJ). Nevertheless, in light of the full grant of the benefit sought in this decision, the Board finds there is no prejudice to the Veteran in considering this evidence in the first instance. See generally Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the evidence of record reflects that his lumbar spine condition is caused by his service-connected pes planus. CONCLUSION OF LAW Service connection for a lumbar spine disability, as secondary to service-connected pes planus, is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). To the extent that there may be any deficiency of notice or assistance with respect to this appeal, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision. II. Entitlement to Service Connection for a Lumbar Spine Condition The Veteran asserts that he has a lumbar spine disorder attributable to his military service or his service-connected pes planus. For the reasons explained below, the Board finds that entitlement to service connection for a lumbar spine disorder is warranted. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Additionally, VA regulations provide that disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, § 3.310 was revised to implement the Allen decision. The revised § 3.310 institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. The new regulation is more restrictive than the prior case law and VA may not give impermissible retroactive effect to the new regulation in this case. Since the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which clearly favors the claimant. The evidence of record includes an August 2000 VA treatment record which indicates that the pain in the Veteran's lower extremities and back may be related to his pes planus. A March 2003 statement from the Veteran reflects that he alleged seeking treatment for his back as early as 1966. A July 2003 VA examination report, however, notes that the Veteran reported injuring his spine in a motor vehicle accident (MVA) sometime in the 1970s and experiencing recurrent back pain since then. The examiner opined that the Veteran does not have any significant pes planus. The examiner noted that if the Veteran has been diagnosed as having pes planus in the past, the pes planus had no relationship to his low back pain. He opined that the Veteran's back pain was related to the reported MVA. March and July 2003 statements from M.P., D.C. noted that the Veteran had been treated at his Chiropractic Clinic since October 26, 2000 for neck and low back pain after being involved in an MVA on October 25, 2000. M.P. noted that the Veteran sustained a rather severe soft tissue injury in this accident due to pre-existing factors including fallen arches and degenerative changes in his spine. An August 2004 statement from M.P. indicates that the Veteran's complaints were consistent with pes planus which exacerbated any degenerative conditions that caused his low back pain. He added that the aggravation of pes planus in service caused the lower back pain he is now experiencing. An August 2008 VA examination report noted that on physical examination, the Veteran had moderate pes planus bilaterally. He also had increased shoe wear pattern on the lateral aspect of the shoes bilaterally suggestive of abnormal weight bearing activity. The diagnosis was pes planus. An October 2010 letter from M.P. notes that the Veteran suffers from a low back disorder due to pes planus which causes severe pain in his low back. A November 2010 VA examination report reflects that the Veteran had flat feet noted on his entrance examination and that his service treatment records were silent for a lower back condition, with no mention of lower back pain on separation examination report in July 1965. The Veteran claimed intermittent back pain since 1965 until his MVA in 2000. Since 2000, he reported daily back pain. The examiner noted that the Veteran had mild pes planus on weight bearing. The examiner observed that mild degenerative changes of the spine were noted on x-ray images in May 2004. The examiner opined that the Veteran's degenerative joint disease of the lumbar spine was not caused by or aggravated by or a result of his military service or service-connected bilateral pes planus. The examiner's rationale is less than clear, but he appears to state that his opinion is based on a review of the available medical literature, his clinical experience, and the lack of documentation of this condition in service records. The examiner noted that to the best of his knowledge, there was no available medical literature to support a cause and effect relationship between the claimed condition and the Veteran's service-connected disability. An August 2012 VA examination report shows that the Veteran reported having back pain for many years. He noted that he first sought treatment after service in 1966. The examiner reviewed the Veteran's medical records. He noted that the Veteran underwent electromyography (EMG) testing of the right lower extremity in December 1999 and that the Veteran did not report back pain at that time. He also noted that the Veteran reported several MVAs, including the MVA in 2000. The examiner observed that the Veteran's service treatment records were silent as to back complaints. The examiner diagnosed the Veteran with lumbosacral degenerative joint disease and opined that it was less likely as not due to active service, including any incident of active service. He also opined that it was less likely as not caused by or aggravated by the service-connected bilateral pes planus. The examiner noted that there was no documentation of the Veteran's lumbar spine condition in service. He stated that his low back condition progressed with the years and intensified after several MVAs. The examiner then goes on to state that the Veteran's claims file reveals three MVAs that the Veteran was involved in from October 2000 to 2007. The examiner stated that it was "highly significant" that the Veteran did not report back pain when undergoing EMG testing in 1999 and that this indicates that the current claimed back condition was not present in 1999. The examiner added that "search of the literature does not reveal any research study showing cause and effect relationship between pes planus and lumbar spine disease." In January 2013, the Veteran submitted the following three articles: "Your Foot Bone's Connected to Your Spine Bone"; "Spinal Biomechanics: What Role Do the Feet Play?"; and "The Foot to Back Connection." All three articles discuss how poor foot alignment, such as flat feet (or pes planus) can strain the lower extremities and settle in the last part of the body that absorbs the shock and strain of walking: the back. The first article notes that "Chiropractors have long known what some other health professionals are just discovering: There is a cause-and-effect relationship between your foot and your spine." The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). A review of the evidence reveals opinions and factors that weigh in favor of the Veteran's claim and opinions and factors that weigh against the claim. Weighing against the Veteran's claim are the March 2003, November 2010 and August 2012 VA examination reports. The VA examiners from these examinations all opine that there is no relationship between the Veteran's pes planus and his lumbar spine condition. With respect to the March 2003 VA examination report, the Board finds this opinion has low probative value because the examiner indicates that the Veteran does not have pes planus. Specifically, the examiner states that the Veteran "does not have any significant pes planus" but then goes on to state "if the Veteran has been diagnosed as having pes planus in the past, the pes planus had no relationship to his low back pain." (emphasis added) The second part of the statement implies that the examiner does not believe the Veteran has a diagnosis of pes planus. This is clearly contradicted by the other evidence of record which repeatedly notes a current diagnosis of pes planus. Therefore, the Board finds this opinion is based on an incorrect factual premise and accordingly has no probative value. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The Board finds the November 2010 and August 2012 examination reports to be less than ideal but still probative. They are less than ideal because both examiners based their opinions, at least in part, on their belief that there was no literature to support a relationship between pes planus and low back disorders. However, the Veteran submitted three articles which describe a relationship between pes planus and low back pain. Weighing in favor of the Veteran's claim are several factors and medical opinions. Initially, the Board notes that in the course of the Veteran seeking medical treatment for his back pain in August 2000, the medical professionals noted a possible relationship between the Veteran's pes planus and his low back pain. The Board finds this evidence highly probative as it was created three years prior to the Veteran even filing a claim for benefits and a number of years prior to him being service-connected for pes planus. It is also significant because it was several months prior to the October and December 2000 MVAs that the 2010 and 2012 VA medical examiners seemed to imply were the main cause of the Veteran's current back condition. Also weighing in favor of the Veteran's claim is the August 2008 VA examination report noting increased shoe wear pattern on the lateral aspect of the shoes bilaterally suggestive of abnormal weight bearing activity. This is significant because the etiological relationship between abnormal weight bearing activity in the feet and lumbar spine complaints is supported by the articles submitted by the Veteran. Specifically, the article "Your Foot Bone's Connected to Your Spine Bone" states that "unbalanced support from your feet puts abnormal stresses on your spine...The most common foot problem is...collapsed arches, which can seriously affect your body's ability to absorb shock." Additionally, the article states that "Chiropractors have long known what some other health professionals are just discovering: There is a cause-and-effect relationship between your foot and your spine." Also, the March and July 2003 statements from M.P. noted that prior to the October 2000 MVA, the Veteran had pre-existing factors including fallen arches and degenerative changes in his spine. Again, this weighs in favor of the Veteran's claim as it indicates a relationship between the Veteran's pes planus and his low back condition and it shows that these conditions pre-existed the MVAs in 2000. Additionally, the August 2004 letter from M.P. states that the Veteran's pes planus exacerbates the Veteran's degenerative changes of his low back which cause his back pain. Finally, an October 2010 letter from M.P. notes that the Veteran suffers from a low back disorder due to pes planus which causes severe pain in his low back. These opinions from M.P. are supported by the medical articles submitted by the Veteran which show that there is a relationship between foot conditions such as pes planus and lumbar spine disorders, the August 2008 VA examination report showing abnormal weight bearing in the Veteran's feet, and the August 2000 VA treatment record suggesting a relationship between the Veteran's pes planus and his lumbar spine complaints. Thus, the Board finds the opinions from M.P. to be probative medical evidence. The Board notes that the evidence in favor of the Veteran's claim supports both a causal relationship between the Veteran's pes planus and his lumbar spine condition (the October 2010 letter from M.P.) and a relationship based on aggravation (the August 2004 letter from M.P.). The Board finds that service connection for a lumbar spine disability based on being caused by service-connected pes planus is a greater benefit than service connection for a lumbar spine disorder based on being aggravated by service-connected pes planus (because in an aggravation scenario, the Veteran is only service connected for that part of the disability that was aggravated by the service-connected disability). Therefore, after resolving all benefit of the doubt in favor of the Veteran under the provisions of 38 U.S.C.A. § 5017(b), the Board finds that the evidence weighing in favor and weighing against the Veteran's claim is at least in equipoise. As such, entitlement to service connection for a lumbar spine disability as secondary to service-connected pes planus is warranted. ORDER Entitlement to service connection for a lumbar spine disability as secondary to service-connected pes planus is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs