Citation Nr: 1316893 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 09-41 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to service-connected calcaneal spur, status post right foot injury with residual pain. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to September 1966 with additional service in the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky. FINDING OF FACT The most probative, competent evidence of record is in equipoise as to whether the Veteran's degenerative joint disease (DJD) of the lumbar spine and degenerative disc disease (DDD) of the lumbar spine are chronically aggravated by service-connected calcaneal spur, status post right foot injury with residual pain. CONCLUSION OF LAW Degenerative joint disease (arthritis) of the lumbar spine and degenerative disc disease of the lumbar spine were chronically aggravated by service-connected calcaneal spur, status post right foot injury with residual pain. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 describes VA's duties 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 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.326 (2012). As the benefit sought is granted in full in the decision below, further discussion as to VA's duties to notify and assist are rendered moot. The Veteran asserts that he has a current low back disability that is proximately due to his service-connected calcaneal spur, status post right foot injury with residual pain. Alternatively, he contends his current low back disability has been chronically aggravated by his service-connected calcaneal spur, status post right foot injury with residual pain. On a November 1965 report of medical history, the Veteran reported that he had injured his back when he was 23 years old. A December 1965 medical examination is negative for any complaints of, treatment for, or diagnosis of a low back disability, and the rest of the Veteran's active duty service treatment records do not reflect any complaints of low back pain. On a November 1970 report of medical history, the Veteran reported a history of back trouble. The examiner noted the Veteran had been in a wreck but had no current trouble. A March 2006 X-ray examination of the lumbar spine revealed multilevel disk bulges causing spinal stenosis and narrowing of several neural foramen. A March 2006 VA treatment record reflects that the Veteran was seen for a painful right foot. The VA physician noted the Veteran ambulated with a severe pes valgus deformity of the right foot and walked on the outside of his foot, which caused instability of the lower leg and back. The physician recommended sole wedges applied to the Veteran's foot gear with a molded insole to compensate for the instability. The physician stated that the Veteran's foot instability had aggravated his lower back. In support of his claim, the Veteran submitted an April 2006 private treatment record from a doctor of podiatric medicine, Dr. S. Gstalder-Chaney. The Veteran reported right foot pain and terrible back pain. He stated custom shoes had alleviated some of his back pain. The assessment was forefoot valgus; plantar fascia thickening, central band near plantar plate; and pain in limb. Dr. Gstalder-Chaney opined that when a person's gait was disrupted due to foot pain and/or deformity, it did aggravate and contribute to back pain. Dr. Gstalder-Chaney reviewed the Veteran's March 2006 X-ray examination findings that showed multilevel disk bulges and spinal stenosis. She noted that although the Veteran's shoes had helped to improve his gait, thus helping his back symptoms to a point, she felt the Veteran's back pain would not be completely eradicated with shoes only. Dr. Gstalder-Chaney stated that she believed the Veteran's foot condition was contributing to his back pain. A May 2006 private treatment record indicates that an additional doctor of podiatric medicine, Dr. T. Webb, examined the Veteran and concurred that the Veteran's foot pathology could contribute to his low back problems. A December 2006 VA treatment record shows the Veteran had persistent low back pain, and although he had inserts placed in his right shoe, his symptoms had worsened. It was noted that the Veteran was also given a built-up shoe that did not help, although current custom shoes provided by a private facility had helped. The Veteran asserted that most of his back pain was coming from his foot problems. In a January 2007 written statement, the Veteran asserted that multiple physicians agreed that his right foot had aggravated his back due to swelling, painful motion, weakness, and instability. He contended that he put more pressure on his lower back to compensate for his painful right foot and that after a long duration of time, his weak back had become painful. The Veteran underwent VA examination in February 2007 in connection with his claim. The Veteran stated that his low back pain had its onset in his early twenties and had become severe within the past three years. He reported a history of sharp, moderately severe pain in the lower back that occurred daily and radiated to his left leg. The Veteran asserted he was unable to walk more than a few yards. On physical examination, the Veteran had pain with motion and tenderness on both sides and weakness on the right side. The Veteran's gait was abnormal in that he limped on his right leg. There was also evidence of lumbar flattening. The VA examiner noted that the clinical examination was only partial as the Veteran did not cooperate with the movements. He did not want to perform any of the range of motion tests because of pain, and therefore, the VA examiner stated the examination was incomplete. The VA examiner diagnosed DJD of the lumbar spine; bilateral calcaneal spurs; and generalized DJD. After review of the service treatment records, private treatment records, and VA treatment records, the VA examiner determined that the Veteran's lower spine problem was multifactorial in origin and opined that the Veteran's generalized DJD was likely age-related. The VA examiner further found the Veteran's current low back condition was not caused by or a result of his service-connected calcaneal spur or the in-service injury to his right foot. The VA examiner noted the Veteran first complained of low back pain in January 2006 and found it significant that the Veteran had a shorter right leg. The VA examiner opined that a calcaneal spur would not result in lower back problems, although limping with a shorter leg could aggravate lower back DJD. Because of the Veteran's lack of cooperation, the VA examiner stated the examination was incomplete, and therefore no firm opinion could be offered. The Veteran also submitted an August 2007 letter from Dr. A. J. Hyden in support of his claim. Dr. Hyden reported that he reviewed the Veteran's claims file and opined that the Veteran had a low back condition secondary to his service-connected disability of calcaneal spur, status post right foot injury with residual pain. He noted the Veteran had developed right foot and ankle pain and now had a limp that affected his lumbar back condition, making his pain more severe. As a result, he found the Veteran's right foot problem worsened his lumbar problem because the foot could aggravate the back just as the back could aggravate the foot. In March 2008, the Veteran underwent additional VA examination in connection with his claim. The VA examiner noted the Veteran's claims file was not made available for review. The Veteran reported that he had problems at age 23 and his symptoms included a dull, daily ache that was moderate in severity and constant, with radiating pain going down both legs and up to his calves. He described the radiating pain as sharp shooting pains. Physical examination revealed pain with motion on both sides, and it was noted that the Veteran had a stooped posture with a limping gait. The VA examiner diagnosed DJD of the lumbar spine and DDD of the lumbar spine that affected the Veteran's daily living activities. The VA examiner opined that a calcaneal spur would not result in lower back problems, although limping could aggravate lower back DJD, if severe enough. The VA examiner found this was not evident in the Veteran's case. As a result, the VA examiner opined that the Veteran's lower back condition was a part of generalized DJD of the spine and had no association with his active service in 1966. An October 2008 private treatment record from Dr. T. Webb provides shows an assessment of plantar fibromatosis; medial plantar nerve entrapment; and lumbar symptoms probably secondary to accommodation to foot pain. The Veteran underwent additional VA examination in September 2009. He reported a history of fatigue, decreased motion, weakness, stiffness, spasms, and pain in the lower back. The Veteran described the pain as shooting, severe, constant, and daily, with radiating, shooting pain down the right leg. Physical examination revealed an antalgic gait and lumbar flattening. The VA examiner diagnosed degenerative disease of the lumbar spine with DDD. After reviewing the service treatment records, private treatment records, and VA treatment records, the VA examiner opined that degenerative disease of the lumbar spine with DDD was not caused by or the result of the service-connected residuals of right foot injury. The VA examiner found it significant that the only identifiable residual of the right foot injury was a calcaneal spur and opined that there was no evidence in the medical literature supporting a connection between calcaneal spurs and degenerative disease of the lumbar spine. In addition, the VA examiner noted the Veteran had a history of low back problems prior to the right foot injury. On his October 2009 Form 9, the Veteran asserted that his service-connected disability had caused him to limp, walk on the side of his foot, and alter his gait. He contended that these problems had aggravated his back and leg. In February 2010, a VA physician opined that the Veteran's current low back condition, to include DDD and arthritis of the lumbosacral spine, was not permanently aggravated by his service-connected calcaneal spur, status post right foot injury with residual pain. The VA physician noted that the findings from a September 2009 X-ray examination represented advanced DDD and arthritis of the lumbosacral spine. In addition, the only residuals of the Veteran's right foot injury were two calcaneal spurs. The VA physician opined that there was no evidence in the medical literature that calcaneal spurs could permanently aggravate degenerative disc/joint disease of the lumbosacral spine. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to, the result of, or chronically aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310(a) and (b). 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 a service-connected disability or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc). In considering all the evidence of record under the laws and regulations as set forth above, the Board concludes the Veteran is entitled to service connection for a low back disability. Initially, as the Veteran and his representative have centered their arguments on the theory of entitlement to service connection on a secondary basis, the Board will not address the theory of direct service connection. The Veteran is service-connected for calcaneal spur, status post right foot injury with residual pain, with an effective date of January 25, 2005. The evidence of record reflects diagnoses of DDD and DJD of the lumbar spine during the pendency of the appeal. As such, the Board finds the Veteran has established a current disability for the purpose of service connection. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). With respect to whether the Veteran's current low back disability is proximately due to or aggravated by his service-connected disability, there are multiple medical opinions of record. VA physicians in February 2007, March 2008, September 2009, and February 2010 provided negative opinions concerning service connection for a low back disability. First, the Board finds the February 2007 VA examiner's opinion inadequate as it was based on an incomplete examination and no firm opinion could be offered. With respect to the March 2008 VA examination, the VA examiner commented only upon whether a low back disability is proximately due to, or the result of, the service-connected right foot disability, and therefore, the Board finds the opinion carries little probative weight concerning whether a low back disability was chronically aggravated by the service-connected right foot calcaneal spur. Furthermore, although the VA examiner opined that a calcaneal spur would not result in lower back problems, the VA examiner did note that limping could aggravate lower back DJD, if severe enough. Although the VA examiner found this was not present in the Veteran's case, the Board finds the other evidence of record contradicts this finding and suggests the Veteran had a severe enough limp to aggravate his lower back disability. Concerning the September 2009 VA examiner's opinion, the Board finds the opinion less probative because although the VA examiner opined that there was no evidence in the medical literature supporting a connection between calcaneal spurs and degenerative disease of the lumbar spine, the VA examiner did not specifically address whether the Veteran's service-connected disability had chronically aggravated his low back disability. In this respect, the February 2010 VA physician opined that the Veteran's current low back condition, to include DDD and arthritis of the lumbosacral spine, was not permanently aggravated by his service-connected calcaneal spur, status post right foot injury with residual pain. The VA physician specifically opined that there was no evidence in the medical literature that calcaneal spurs could permanently aggravate degenerative disc/joint disease of the lumbosacral spine. As such, the Board finds the February 2010 VA physician's opinion carries some probative value with respect to the issue of service connection on a secondary basis. However, in contrast to the above negative opinions, the March 2006 VA physician noted the Veteran ambulated with a severe pes valgus deformity of the right foot and found this caused instability of the lower leg and back and aggravated the lower back. Similarly, Dr. Gstalder-Chaney opined that when a person's gait was disrupted due to foot pain and/or deformity, it did aggravate and contribute to back pain. As such, Dr. Gstalder-Chaney believed the Veteran's foot condition was contributing to his back pain. In addition, the December 2006 VA treatment record suggests a correlation between the Veteran's low back pain and treatment for his right foot problems. Specifically, the VA physician indicated that inserts had been placed in the Veteran's right shoe to alleviate his back pain. Additionally, in August 2007, Dr. Hyden reviewed the Veteran's claims file and opined that the Veteran had a low back condition secondary to his service-connected disability of calcaneal spur, status post right foot injury with residual pain. He noted the Veteran had developed right foot and ankle pain and now had a limp that made his lumbar back pain more severe. As a result, he found the Veteran's right foot problem had caused his lumbar problem to worsen because the foot could aggravate the back. The Board finds this opinion particularly probative as it was based on a review of the Veteran's claims file and is supported by the March 2006 VA physician's assessment that a severe limp could aggravate the lower back. Finally, in October 2008, Dr. T. Webb found the Veteran's lumbar symptoms were probably secondary to compensation for foot pain. In view of the foregoing, the Board finds the probative clinical evidence of record is in equipoise as to whether the Veteran's degenerative joint disease (arthritis) and degenerative disc disease of the lumbar spine are chronically aggravated by his service-connected calcaneal spur, status post right foot injury with residual pain. With resolution of doubt in the Veteran's favor, the Board finds that the evidence supports service connection for arthritis and degenerative disc disease of the lumbar spine. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for degenerative joint disease (arthritis) and degenerative disc disease of the lumbar spine on the basis of chronic aggravation by service-connected calcaneal spur, status post right foot injury with residual pain, is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs