Citation Nr: 1323258 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 04-42 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a back disability, to include as secondary to a service-connected right foot disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1974 to September 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. In March 2005, the Veteran testified at a hearing before a Decision Review Officer at the Buffalo RO. In August 2006, the Veteran also testified at a videoconference hearing before an Acting Veterans Law Judge who is no longer employed by the Board. Transcripts of both hearings are of record. In a January 2013 letter the Veteran stated that she did not wish to have a new hearing. In September 2006, October 2008, and April 2009, the Board remanded the claim for additional evidentiary development. It is again before the Board for review. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Additional evidence consisting of VA treatment records from July to September 2012 reflecting the Veteran's treatment for probable rheumatoid arthritis was associated with the Veteran's claim file in February 2013, and in June 2013 the Veteran agreed to waive AOJ consideration of the evidence. Accordingly, the Board has complied with the provisions of 38 C.F.R. § 20.1304(c). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran's back disability, disc disease of the lumbosacral spine, is related to service. CONCLUSION OF LAW Disc disease of the lumbosacral spine was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has argued two theories as to why her back disability is service-connected. In an April 2005 statement she indicated her back disability was a result of a fall in service. The Veteran also contends that her back disability is secondary to her right foot disability, which caused her to have an asymmetrical pelvic alignment and gait, consequently weakening her back. 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). In order to establish entitlement to service connection for a present disability the Veteran must show: (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, 1166-67 (Fed. Cir. 2004). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's service treatment records contain no complaint or diagnosis of back pain or injury, and she does not allege otherwise. Her service treatment records do show treatment for an ankle and foot injury after a fall down some stairs in June 1974 and treatment for a right wrist injury after a fall onto the floor in December 1974. The Veteran also complained of a right foot injury in February 1975 and a right ankle injury sustained while walking to work in April 1975. The Veteran is service-connected for residuals of a chip fracture of her right fifth toe and residuals of tarsometatarsal sprain of her right first toe. VA treatment records show the Veteran reported back pain in February 2001. A March 2001 x-ray was unremarkable. An August 2001 MRI showed an annular tear at the L5-S1 level with a small associated disk protrusion or herniation, a tiny central disk protrusion at L4-5, and a tiny central and right paramedian disk protrusion at T11-12. In August 2001, a VA physical therapist stated that the Veteran's signs and symptoms are consistent with lower back pain of myofascial origin and stated that it "may be a result of L5-S1 facet arthritis and chronic dysfunction at this site [for the past] 23 years. Physical therapy notes from November 2006 include a notation by the Veteran's treating VA physical therapist that the Veteran's signs and symptoms are consistent with right lower back pain from asymmetrical pelvic alignment, which may be from residuals of her service-connected foot injury. " The Veteran underwent a VA examination in November 2008 and the examiner reviewed the claims file and examined the Veteran. It was noted that the Veteran reported having fallen on her back during active duty. She said the fall resulted in a serious injury to the right foot and ankle and that she did not pay as much attention to her back symptoms. Following an examination, the Veteran was diagnosed as having low back pain secondary to L5-S1 facet sclerosis and thoracolumbar degenerative disc disease. The Veteran's low back disability was attributed both to service and her service-connected right foot disability. It was explained that military service places more stress and strain on the axial skeletal system than typical civilian occupations held by females. It was indicated that the Veteran had a history of a fall on her back. It was noted that the Veteran had a chronic right foot condition which altered her gait sufficiently such that changes in the lumbar spine were induced as manifested by facet joint arthropathy and degenerative disc disease. It was acknowledged that the Veteran possessed other risk factors that impacted her physical condition such as her work as a nurse's aide, a leg length discrepancy, and the normal aging process. However, it was opined that these additional factors did not negate the contribution of military stressors. The Veteran underwent another VA examination in July 2009. The examiner reviewed the Veteran's claims file. At the examination, the Veteran reported that while in service she fell and injured her ankle, and in 2001 she bent over and had a sudden onset of back pain, which has gotten worse since that time. The examiner diagnosed chronic lumbosacral sprain with referred pain to the right sacroiliac area and early degenerative intervertebral disk disease of the lower lumbar spine without evidence of radiculopathy or radicular irritation. The examiner opined that it is at least as likely as not that the Veteran's back disability is unrelated to her military service and not caused or aggravated by her service-connected foot disability. The examiner explained that "[i]f the Veteran had any degree of difficulty, particularly with her back or as a result of the gait impairment due to her ankle injury, the stressors placed on the lumbar spine would have been such that by this time she would have developed significant degenerative changes in the lower lumbar area." The examiner noted that the November 2008 x-rays were reported as within normal limits and the Veteran's August 2001 MRI showed early degenerative intervertebral disk disease in the lower lumbar segments, at least as likely as not age-related. In sum, the evidence is evenly balanced. Positive evidence includes a November 2006 statement from the Veteran's treating physical therapist which noted that her back injury was consistent with pain from "asymmetrical pelvic alignment which may be from residuals from foot injury" which is service-connected. Positive evidence also includes the November 2008 VA compensation examination report which directly relates the back disability to service and her service-connected right foot disability. Negative evidence includes the July 2009 VA examination report which discounts a relationship to service and her service-connected disability. Based on the forgoing, the Board finds that the evidence is in relative equipoise; both examination reports were based on a claims file review and an evaluation of the Veteran. Despite the lack of treatment in service, the Board finds the Veteran competent and credible as to her assertions of inservice back problems as related to a fall. The Board finds that the Veteran's low back disability is related to service. ORDER Entitlement to service connection for disc disease of the lumbar spine is granted. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs