Citation Nr: 1326253 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-05 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a low back condition, to include degenerative disc disease of the lumbar spine, with foraminal and mild canal stenosis at L5-S1, with right S1 radiculopathy, to include as secondary to the service-connected residuals of a right ankle sprain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1972 to December 1974. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran filed a notice of disagreement in February 2010. The Veteran was provided with a Statement of the Case (SOC) in August 2010. The Veteran perfected his appeal in January 2011 with an informal request and in April 2011 with a VA Form 9. The Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing in May 2011. A transcript of this proceeding has been associated with the claims file. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals a June 2012 rating decision that denied service-connection for posttraumatic stress disorder (PTSD) and VA Medical Center treatment records dated from December 2009 to May 2012. FINDING OF FACT The record evidence is at least in equipoise as to whether the Veteran's low back disorder, variously diagnosed to include degenerative disc disease of the lumbar spine, with foraminal and mild canal stenosis at L5-S1, with right S1 radiculopathy, is proximately related to or the result of the Veteran's service-connected residuals of a right ankle sprain. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, a chronic low back disorder, variously diagnosed variously diagnosed to include degenerative disc disease of the lumbar spine, with foraminal and mild canal stenosis at L5-S1, with right S1 radiculopathy, is proximately related or the result of service-connected residuals of a right ankle sprain. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA With respect to the claim for entitlement to service connection for a low back disorder, because the claim is granted herein, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159 (2012). Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Furthermore, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). To establish service connection on a secondary basis, three elements must be met: (1) current disability; (2) service-connected disability; and (3) nexus between current disability and service-connected disability. Wallin v. West, 11 Vet. App. 509 (1998). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran contends that his currently diagnosed lower back condition is caused by his service-connected residuals of a right ankle sprain. In an April 2011 statement, the Veteran provided that the excessive micro-motion combined with the inflammatory proteins produces ongoing low back pain constantly in his back. He stated that it has been difficult to detect in imaging scans and that he has attempted many methods to treat the related pain. A review of the Veteran's service treatment records revealed that he was seen for back pain in November 1974 and given an impression of possible rheumatoid spondylitis. There were no further entries related to complaints or treatments for back pain. A review of the Veteran's VA outpatient treatment records revealed that he has been treated for complaints of lower back pain. In April 2008, the Veteran was seen for complaints of chronic lower back pain with radiation in both legs since 1997. The Veteran was provided with a nerve conduction study and diagnosed with right S1 radiculopathy. In April 2009, the Veteran was provided imaging and diagnosed with moderate degenerative disc disease with interval worsening. There was also a L2-3 level paracentral disc protrusion, congenital canal stenosis, and neural foraminal narrowing extending from L2-S1. In May 2009 and July 2009, the Veteran was shown as diagnosed with lumbar spondylosis and provided an epidural steroid injection. In January 2010 and May 2010, the Veteran was provided with a bilateral L3-S1 and L4-S1 pericapsular facet joints injections respectively. The VA outpatient treatment records did not contain any discussion relating the Veteran's lower back condition to his service-connected right ankle or military service. The Veteran was provided with a VA examination in January 2010. At this examination, the examiner noted the Veteran's history of a right ankle injury in military service as well as his complaints of lower back pain. He noted that the Veteran had worked in maintenance since leaving the service and that he denied any gait or walking difficulties. The examiner diagnosed the Veteran with lumbar degenerative disc disease with foraminal and mild canal stenosis at L5-S1 with right S1 radiculopathy. The examiner opined that this condition was less likely than not related to his right ankle sprain. In support, the examiner provided that the Veteran did not have a significant limp and his gait and walk were not disturbed when he was observed. Further, the Veteran was a maintenance man, which required heavy lifting and many flexions and extensions of his back after his career in service and this more than likely progressed into his current back condition. At his May 2011 Board hearing, the Veteran stated that he lived with his back pain for years after service without seeking treatment. He stated it became severe enough to seek treatment in 1996 because he could not move and had to go to the emergency room to take a steroid shot and epidural to bring him back to form and relieve the pain. The Veteran stated that he believed his lower back condition was related to his right ankle, as he had never had back pain prior to that injury. The Veteran also testified that he believed the January 2010 VA examination was based upon misleading facts, as he used the wrong word, "maintenance," to describe his prior work history, and he believed that the examiner used this as a basis to provide a negative etiology opinion. In contrast to the work history portrayed in the subjective history of the 2010 examination, the Veteran provided that maintenance work had only been a small part of his post-service work history and that most of his work was sedentary, using his brain and his hands. The Veteran testified to working as a chef and going to school upon leaving the military from 1974 to 1977; working as a cook from 1978 to 1979; working as a material handler, mostly sitting an assembling grenades, for six months in 1979, working as a gas mask tester, involving sitting and standing, from 1981 to 1984; working in security for five months in 1986; working in maintenance, involving cleaning, mopping, and dusting, from 1987 to 1988; working in security, cooking, and at a car wash from 1988 to 1991; working in Germany as a cook and a warehouse forklift operator, that did not require any heavy lifting, from 1991 to 1994; working as a grounds keeper, involving riding a lawn mower and watering truck and pruning trees with a power saw, from 1994 to 1997; working as a store clerk from 1997 to 2002; owning a restaurant from 2002 to 2004; working at the Post Office, involving cleaning, mopping, light maintenance, changing light bulbs, vacuuming, and dusting, from 2005 to 2008; and working as a toxic material handler, involving a lot of sitting, from 2008 to present. The Veteran also provided that on the day of the 2010 examination, he had taken his pain medication, which may have led the examiner to believe that his limp on his right ankle was not as pronounced as it normally was. The Veteran was administered a private examination in May 2011. The private examiner referred to the Veteran's medical records in examining the Veteran, including his service treatment records which were used to substantiate his history. At this examination, the examiner noted the Veteran's history of a right ankle injury in military service as well as his complaints of lower back pain. He further noted that, following maximal healing of the right ankle, the Veteran has experienced recurrent, persistent pain and instability. The examiner noted that the Veteran reported that his ankle affects his ability to walk and stand properly and that he has experienced low back pain since around 1974 to 1975 that became more severe in 1996. Upon objective observation, the examiner found that the Veteran had a moderately antalgic gait, as he attempted to unweight his right ankle. The examiner diagnosed the Veteran with an old fracture right ankle, posttraumatic degenerative changes and instability, degenerative disc disease lumbar spine, and bilateral S1 impingement. The examiner opined that, based upon the Veteran's history, physical findings, and the medical record, it is more likely than not that the Veteran's lumbar pathology is due, in large measure, to the abnormal gait and instability caused by the initial ankle fracture and subsequent degenerative changes. The record of evidence supports a finding of a service-connected disability as shown by the Veteran's service-connected residuals of a right ankle sprain. See Wallin, 11 Vet. App. at 509; 38 C.F.R. § 3.310(a). The record of evidence also supports a finding of a current disability, because the Veteran's private treatment records, VA medical records, and VA examinations reveal that the Veteran has a presently existing chronic low back condition, variously diagnosed to include degenerative disc disease of the lumbar spine, with foraminal and mild canal stenosis at L5-S1, with right S1 radiculopathy. Id. Thus, the remaining issue is whether there is evidence of a nexus between the Veteran's current low back disability and his service-connected right ankle sprain. Id. The Board finds that the Veteran has provided competent and credible testimony that his symptoms of low back pain have continued since service discharge. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Veteran is competent to testify about the onset and continuation of his low back pain, as pain is an observable symptom within the realm of his personal knowledge. Further, the Veteran is credible, as his statements regarding the onset of his lower back pain as well as receiving treatment since 1996 have remained consistent and are corroborated by the treatment notes in his private and VA treatment records. In assessing the evidence of record, the Board observes the negative medical nexus opinion provided by the VA examiner in January 2010. Notably, however, this opinion merely offers an equal juxtaposition in its findings, which are essentially in relative equipoise with the findings of the Veteran's private treating physician and the lay evidence. Additionally, the Board further observes that the January 2010 VA examiner expressed the opinion that the Veteran's condition did not show evidence of a significant limp, gait, or walking abnormality. However, the Veteran stated at his May 2011 Board hearing that he had taken medication for his symptoms and, therefore, they would not have been as pronounced. As such, it appears that the 2010 examiner may have based his opinion, in part, on data that did not truly reflect the extent of the Veteran's condition. Further, the 2010 examiner appeared to base his opinion on the assumption that the Veteran had worked strictly in maintenance ever since leaving service and that his work involved heavy lifting and many flexions and extensions of his back. However, this is in direct conflict with what the Veteran has reported to his private doctor and through his testimony at the May 2011 Board hearing. At the very least, the discrepancy has been suggested by the Veteran to be a miscommunication to the 2010 examiner in discussing his work history. As there is no evidence associated with the claims file to rebut the Veteran's assertions, he is provided the benefit of the doubt and his work history, involving minimal maintenance work and mostly sedentary jobs, is presumed. It is also well to observe that the May 2011 private medical examination is based on a medical history offered by the Veteran, which is accurate and consistent with the service treatment records and corroborated by his VA treatment records. These critical pieces of information from the Veteran's medical history do lend credence to the private examiner's apparent association of the Veteran's presently existing low back disorder, variously diagnosed to include degenerative disc disease of the lumbar spine, with foraminal and mild canal stenosis at L5-S1, with right S1 radiculopathy with the abnormal gait and instability resulting from his service-connected residuals of a right ankle sprain. After a full review of the totality of the medical and lay evidence of record, and resolving all reasonable doubt in favor of the Veteran, the record of evidence is at least in equipoise as to whether the Veteran's low back condition(variously diagnosed to include degenerative disc disease of the lumbar spine, with foraminal and mild canal stenosis at L5-S1, with right S1 radiculopathy) is proximately related to or the result of the service-connected residuals of a right ankle sprain. Accordingly, the Board determines that service connection for a low back condition is granted. The appeal is granted. ORDER Entitlement to service connection for a low back condition, to include degenerative disc disease of the lumbar spine, with foraminal and mild canal stenosis at L5-S1, with right S1 radiculopathy, to include as secondary to the service-connected residuals of a right ankle sprain is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs