Citation Nr: 1329331	
Decision Date: 09/12/13    Archive Date: 09/20/13

DOCKET NO.  08-01 894	)	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, 
diagnosed as lumbar degenerative joint disease and 
spondylosis, with severe chronic desiccation and mild 
neuroforaminal encroachment at L5-S1, also claimed as 
secondary to service-connected residuals of bilateral os 
calcis fractures.


REPRESENTATION

Appellant represented by:	Alabama Department of Veterans 
Affairs


ATTORNEY FOR THE BOARD

T. S. Kelly, Counsel 




INTRODUCTION

The Veteran, who is also the appellant, had service in the 
U.S. Army Reserves, with active duty for training (ADT) from 
April 1966 to August 1966.  He also served in the Alabama 
Army National Guard from October 1966 to July 1967, with 
various periods of ADT and inactive duty training (IADT) 
during that time. 

This matter originally came before the Board of Veterans' 
Appeals  (Board) on appeal from a March 2006 rating 
determination of the Department of Veterans Affairs (VA) 
Regional Office (RO) located in Montgomery, Alabama. 

The Board remanded the case for further development in March 
2011.  The matter was once again remanded for further 
development in October 2012.  The matter was again remanded 
for further development in April 2013.  The requested 
development has been completed and the matter is now ready 
for appellate review.  See Stegall v. West, 11 Vet. App. 
268, 271 (1998) (noting the Board's duty to "insure [the 
RO's] compliance" with the terms of its remand orders).


FINDING OF FACT

Any current low back disorder, to include degenerative joint 
disease and spondylosis, with severe chronic desiccation and 
mild neuroforaminal encroachment at L5-S1, is not of service 
origin, did not manifest within a year of service 
separation, or is etiologically related to the service-
connected bilateral os calcis, to include by way of 
aggravation. 


CONCLUSION OF LAW

Any current low back disorder, to include degenerative joint 
disease and spondylosis, with severe chronic desiccation and 
mild neuroforaminal encroachment at L5-S1, did not pre-exist 
service, was not incurred in or aggravated by service nor 
may it be presumed to have been incurred therein, nor is it 
proximately due to, the result of, or aggravated by a 
service-connected disability.  38 U.S.C.A. §§ 101, 1101, 
1110, 1111, 1153 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 
3.303, 3.306, 3.307, 3.309 (2012); 3.310 (2006).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA) and 
implementing regulations impose obligations on VA to provide 
claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Proper VCAA notice must inform the claimant of any 
information and evidence not of record (1) that is necessary 
to substantiate the claim; (2) that VA will seek to provide; 
(3) and that the claimant is expected to provide.  
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). 

For claims pending before VA on or after May 30, 2008, 
38 C.F.R. § 3.159 has been amended to eliminate the 
requirement that VA request that a claimant submit any 
evidence in his or her possession that might substantiate 
the claim.  73 Fed. Reg. 23,353 (Apr. 30, 2008). 

The Board notes that the Veteran's status has been 
substantiated.  The Board observes that in June 2005 and 
March 2011 letters, the RO provided the Veteran with notice 
that informed him of the evidence needed to substantiate his 
claim.  The letters also told him what evidence he was 
responsible for obtaining and what evidence VA would 
undertake to obtain.  The letters further told him to submit 
relevant evidence in his possession. 

The Court has also held that that the VCAA notice 
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. 
§ 3.159(b) apply to all five elements of a service 
connection claim.  Those five elements include: 1) veteran 
status; 2) existence of a disability; 3) a connection 
between the veteran's service and the disability; 4) degree 
of disability; and 5) effective date of the disability.  
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  
March 2006 and March 2011 letters also provided the Veteran 
with notice as to the disability rating and effective date 
elements of the claim. 

Although some of the notice letters were not sent before the 
initial RO decision in this matter, the Board finds that 
this error was not prejudicial to the Veteran because the 
actions taken by VA after providing the notice have 
essentially cured the error in the timing of notice.  Not 
only has the Veteran been afforded a meaningful opportunity 
to participate effectively in the processing of his claim 
and been given ample time to respond, the RO has also 
readjudicated the case by way of a supplemental statement of 
the case issued after the notice was provided.  See Prickett 
v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of 
a fully compliant VCAA notification followed by 
readjudication of the claim, such as a statement of the case 
or supplemental statement of the case, is sufficient to cure 
a timing defect).  Furthermore, the Veteran and his 
representative have presented detailed argument which shows 
they are aware of what is needed to substantiate the claim.  
For these reasons, it is not prejudicial to the Veteran for 
the Board to proceed to finally decide this appeal because 
any error in the notice did not affect the essential 
fairness of the adjudication.  See generally Shinseki v. 
Sanders, 129 S. Ct. 1696 (2009) (explaining application of 
the rule of prejudicial error in the context of claims for 
VA benefits).

VA has a duty to assist a Veteran in the development of the 
claim.  This duty includes assisting the Veteran in the 
procurement of service medical records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  All 
pertinent treatment records, service, VA, and private, have 
been obtained and associated with the claims folder insofar 
as possible.  No other relevant records have been 
identified. 

The Board notes that this matter was remanded on several 
occasions to attempt to obtain opinions with regard to the 
etiology of any current back disorder and its relationship, 
if any, to his period of service.  In conjunction with the 
most recent Board remands, the Veteran was afforded a VA 
examination in November 2012 and an addendum opinion along 
with an additional opinion from a VA podiatrist were 
provided in May 2013.  The opinions provided, along with 
detailed rationale to support those opinions, comply with 
the Board remands. 

The Veteran has been afforded a meaningful opportunity to 
participate effectively in the processing of the claim, 
including by submission of statements and arguments 
presented by his representative and the opportunity to 
appear at a hearing if so desired.  For these reasons, it is 
not prejudicial to the appellant for the Board to proceed to 
finally decide the appeal.  Based upon the foregoing, the 
duties to notify and assist the Veteran have been met, and 
no further action is necessary to assist the Veteran in 
substantiating this claim.

Service Connection for Low Back Disorder

Service connection may be granted for a disability resulting 
from disease or injury incurred in or aggravated by active 
military, naval, or air service.  38 U.S.C.A. § 1110; 
38 C.F.R. § 3.303(a).  Service connection may be granted for 
any disease diagnosed after discharge, when all the 
evidence, including that pertinent to service, establishes 
that the disease was incurred in service.  38 C.F.R. 
§ 3.303(d).  As a general matter, service connection for a 
disability requires evidence of: (1) the existence of a 
current disability; (2) the existence of the disease or 
injury in service, and; (3) a relationship or nexus between 
the current disability and any injury or disease during 
service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 
2004); see also Hickson v. West, 12 Vet. App. 247, 253 
(1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), 
aff'd, 78 F.3d 604 (Fed. Cir. 1996). 

The Veteran has claimed a low back disorder and the Veteran 
has been diagnosed with degenerative joint disease, which is 
a "chronic disease" listed under 38 C.F.R. § 3.309(a).  
Therefore, 38 C.F.R. § 3.303(b) applies in this case.  
Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where 
the evidence shows a "chronic disease" in service or 
"continuity of symptoms" after service, the disease shall be 
presumed to have been incurred in service.  For the showing 
of "chronic" disease in service, there is required a 
combination of manifestations sufficient to identify the 
disease entity, and sufficient observation to establish 
chronicity at the time.  With chronic disease as such in 
service, subsequent manifestations of the same chronic 
disease at any later date, however remote, are service-
connected, unless clearly attributable to intercurrent 
causes.  If a condition noted during service is not shown to 
be chronic, then generally, a showing of "continuity of 
symptoms" after service is required for service connection.  
38 C.F.R. § 3.303(b). 

Additionally, where a veteran served ninety days or more of 
active service, and certain chronic diseases, such as 
arthritis, become manifest to a degree of 10 percent or more 
within one year after the date of separation from such 
service, such disease shall be presumed to have been 
incurred in service, even though there is no evidence of 
such disease during the period of service.  38 U.S.C.A. 
§§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 
3.309(a).  While the disease need not be diagnosed within 
the presumption period, it must be shown, by acceptable lay 
or medical evidence, that there were characteristic 
manifestations of the disease to the required degree during 
that time.  Id. 

Active military, naval, or air service includes any period 
of active duty for training (ACDUTRA) during which the 
individual concerned was disabled from a disease or injury 
incurred in the line of duty.  38 U.S.C.A. § 101(21), (24); 
38 C.F.R. § 3.6(a).  Active military, naval, or air service 
also includes any period of inactive duty training 
(INACDUTRA) during which the individual concerned was 
disabled from an injury incurred in the line of duty.  Id.  
Accordingly, service connection may be granted for 
disability resulting from disease or injury incurred in, or 
aggravated, while performing ACDUTRA or from injury incurred 
or aggravated while performing INACDUTRA.  38 U.S.C.A. 
§§ 101(24), 106, 1110.

A veteran will be considered to have been in sound condition 
when examined, accepted and enrolled for service, except as 
to defects, infirmities, or disorders noted at entrance into 
service, or where clear and unmistakable (obvious or 
manifest) evidence demonstrates that an injury or disease 
existed prior thereto.  Only such conditions as are recorded 
in examination reports are to be considered as noted.  
38 U.S.C.A. §§ 1111, 1131, 1132; 38 C.F.R. § 3.304(b). 

Service connection may also be granted for a disability on 
the basis of aggravation.  38 U.S.C.A. § 1110; 38 C.F.R. 
§§ 3.303(a), 3.304, 3.306.  A preexisting injury or disease 
will be considered to have been aggravated by active 
military, naval, or air service, where there is an increase 
in disability during such service, unless there is a 
specific finding that the increase in disability is due to 
the natural progress of the disease.  38 C.F.R. § 3.306(a).  
Clear and unmistakable evidence (obvious or manifest) is 
required to rebut the presumption of aggravation if the pre 
service disability underwent an increase in severity during 
service.  This includes medical facts and principles which 
may be considered to determine whether the increase is due 
to the natural progress of the condition.  38 C.F.R. 
§ 3.306(b). 

Simply put, if a preexisting disorder is noted upon entry 
into service, the Veteran cannot bring a claim for service 
connection for that disorder, but he may bring a claim for 
service-connected aggravation of that disorder.  In that 
case 38 U.S.C.A. § 1153 applies and the burden falls on the 
Veteran to establish an increase in disability during 
service.  See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 
1994).  A preexisting injury or disease will be considered 
to have been aggravated during service when there is an 
increase in disability during service.  38 U.S.C.A. § 1153; 
38 C.F.R. § 3.306(a).  If increased disability is 
established, then the burden shifts to the government to 
show a lack of aggravation by establishing, by clear and 
unmistakable evidence, that the increase in disability is 
due to the natural progress of the disease.  38 U.S.C. 
§ 1153; see also 38 C.F.R. § 3.306(b); Jensen, 19 F.3d at 
1417. 

Temporary or intermittent flare-ups of a preexisting injury 
or disease are not sufficient to be considered "aggravation 
in service" unless the underlying condition itself, as 
contrasted with mere symptoms, has worsened.  See Jensen v. 
Brown, 4 Vet. App. 304, 306-07 (1993).

Service connection may also be granted for disability which 
is proximately due to or the result of a service-connected 
disease or injury.  38 C.F.R. § 3.310; Allen v. Brown, 7 
Vet. App. 439, at 448 (1995) (holding that service 
connection on a secondary basis requires evidence sufficient 
to show that the current disability was caused or aggravated 
by a service-connected disability).  To establish secondary 
service connection, the law states that there must be (1) 
evidence of a current disability; (2) evidence of a service-
connected disability; and (3) nexus evidence establishing a 
connection between a service-connected disability and the 
current disability.  See Wallin v. West, 11 Vet. App. 509, 
512 (1998).

The Board notes that there was an amendment to 38 C.F.R. 
§ 3.310, effective October 10, 2006.  71 Fed. Reg. 52,744 -
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 judged.  Although 
VA has indicated that the purpose of the regulation was 
merely to apply the ruling of the Court of Appeals for 
Veterans Claims (Court) in Allen, it was made clear in the 
comments to the regulation that the changes were intended to 
place a burden on the claimant to establish a pre-
aggravation baseline level of disability for the non-
service-connected disability before an award of service 
connection may be made.  This had not been VA's practice, 
which suggests that the change amounted to a substantive 
change.  Given what appear to be substantive changes, and 
because the Veteran's claim was pending before the 
regulatory change was made, the Board will consider the more 
favorable version of 38 C.F.R. § 3.310 in effect before the 
amendment.

The Veteran contends that he has low back pain that is 
secondary to his service-connected residuals of bilateral os 
calcis fractures.  Specifically, he avers that his bilateral 
os calcis fractures have caused him to walk in such a way 
that has caused low back pain.  In the alternative, he 
contends that he injured his low back at the same time he 
fractured his heels in May 1966 while on active service. 

Service treatment records indicate the existence of back 
problems prior to enlistment in April 1966.  The December 
1965 service enlistment examination report indicates that 
the Veteran had injured his back in a 1955 motor vehicle 
accident.  The Veteran also checked "yes" next to arthritis 
or rheumatism on his Report of Medical History, but the 
examining physician wrote "no arthritis" in the physician's 
summary section of the report.  Moreover, clinical 
examination of the back was marked as "normal." 

Service treatment records indicate in April 1966, the 
Veteran was admitted for an arthritis work-up.  He reported 
pain in his neck and upper back, and stated that marching 
caused pain in his hips, ankles, knees, elbows, back, and 
neck.  At discharge from the hospital, it was noted that 
there was no clinical evidence of arthritis. 

In May 1966, the Veteran reported painful heels, and an X-
ray study revealed bilateral March (or stress) fracture of 
the os calcis. 

At the July 1966 separation examination, the Veteran 
continued to report cramps in his legs as well as arthritis 
or rheumatism on his Report of Medical History, stating that 
he was treated for gouty arthritis in December 1965 (prior 
to service enlistment).  The examining physician noted, 
however, that the Veteran was checked for gout in service 
and was told that he had myositis rather than gouty 
arthritis.  The examining physician also indicated that the 
Veteran had swollen joints/arthritis with occasional 
swelling and pain in his ankles and wrists since the age of 
fourteen, with no joint deformity.  Clinical examination of 
the lower extremities and spine was marked as "normal."

Following separation from ADT in August 1966, as noted 
above, the Veteran had service with the Alabama Army 
National Guard from October 1966 to July 1967.  The October 
1966 National Guard enlistment examination report is 
negative for any back problems, findings, or diagnoses.  The 
Veteran checked "no" next to recurrent back pain, and 
arthritis or rheumatism on the Report of Medical History, 
and clinical examination of the back was marked as "normal."  
At the June 1967 separation examination, however, the 
Veteran checked "yes" next to recurrent back pain, and 
arthritis or rheumatism, on his Report of Medical History.  
On physical examination, it was noted that the Veteran had 
extreme soreness of the heels with excessive walking, and 
cervical spine tenderness to pressure.  Otherwise, physical 
examination of the back was normal.

At the time of a July 1970 VA examination, the Veteran 
reported that his heels hurt when he stood.  Gait was 
reported as normal at that time.  There were no reports or 
findings of back problems at that time.  

In a January 1977 treatment record, it was noted that the 
Veteran reported that he had been told that he had cervical 
spondylitis.  Physical examination performed at that time 
revealed full range of motion for all joints without 
swelling, tenderness, heat, effusion, etc.  

At the time of a May 1984 VA examination, cervical and 
lumbar curvatures were well preserved.  There were no spasms 
of the paravertebral muscles and no scoliosis of the spine.  
Range of motion for the spine was full.  

In support of his claim, the Veteran submitted statements 
from various individuals.  In a March 2003 letter, D. O., 
indicated that he had known the Veteran all his life.  He 
indicated that the Veteran had developed problems in his 
ankles and it was very hard for him to stand.  At the time 
of September 2003, January 2004, and March 2004 outpatient 
visits, normal gait findings were reported along with no 
tenderness of palpation on the spine.  

In a July 2005 letter, C.H., M.D., indicated that the 
Veteran had been a patient of his for some time now with 
chronic foot pain due to injuries sustained while he was in 
the Army.  The Veteran had bilateral calcaneal fractures and 
had degenerative changes from that and chronic foot pain.  
Dr. H. also noted that due to the way the Veteran had to 
walk related to that, he had developed degenerative joint 
disease in his back and had nerve impingement from his disk 
and chronic pain syndrome that was managed with Lortab and 
Xanax therapy on a routine basis.  He stated that he felt 
like the foot problems had exacerbated the problems related 
to his back in that they some way acted synergistically to 
cause his pain.

The Veteran was afforded a VA examination in February 2006.  
The examiner noted the July 2005 letter from Dr. H.  The 
examiner indicated that the Veteran reported fracturing his 
heels when going through the obstacle course and hurting his 
back at the same time.  The examiner rendered a diagnosis of 
lumbosacral strain with severe decreased range of motion and 
function from resistance.  The examiner opined that it was 
not as likely as not that the Veteran's back condition 
(diagnosed as degenerative joint disease of the lumbosacral 
spine with mild neuroforaminal encroachment at L5-S1) was 
related to his service-connected os calcis fractures, 
because the examiner noted that the Veteran reported that 
when he was on an obstacle course during basic training, he 
landed on his feet as well as his back.  Based on the 
Veteran's statement that the injury to the feet and back 
occurred at the same time, the VA examiner concluded that it 
was as likely as not that the current low back condition was 
related to the same in-service injury in which the Veteran 
injured his heels.

In a December 2007 letter, Dr. H. noted that, during basic 
training, the Veteran had jumped off of a training device 
into some sawdust and sand, breaking his heel bones and 
jamming his back.  Dr. H. indicated that the Veteran 
reported chronic foot and back pain since that injury.  He 
opined that the Veteran's current low back pain was 
continuous since active service and was related to the in-
service injury in which he broke his heel bones.

In March 2011, the Board remanded this matter for further 
development.  Pursuant to the Board's remand, the Veteran 
was afforded VA orthopedic and neurologic examinations in 
October 2011.  The VA examiner concluded that there was no 
evidence of peripheral nerve damage or radiculopathy.  He 
stated that the Veteran's back condition was less likely 
than not incurred in or caused by any event, injury, or 
illness during active service, noting that there was no 
documentation of treatment for the low back in the service 
treatment records, including after the incident in which the 
Veteran fractured his heel bones.  The examiner further 
indicated that the low back condition was at least as likely 
as not caused by the service-connected bilateral os calcis 
fractures but he did not provide any rationale for this 
opinion. 

In May 2012, the RO obtained an addendum opinion from the 
October 2011 VA examiner.  In the addendum report, the 
examiner opined that the low back condition clearly and 
unmistakably preexisted entrance into active service, as 
indicated by the notation in the enlistment examination 
report of a back injury in a 1955 motor vehicle accident, 
and that the low back condition was clearly and unmistakably 
not aggravated by active service, as indicated by the lack 
of documentation of low back treatment or complaints in the 
service treatment records.  The VA examiner then checked the 
box on the Disability Benefits Questionnaire indicating that 
the low back condition was "at least as likely as 
not...incurred in or caused by the claimed in-service 
injury, event, or illness."  However, in the rationale 
section, the VA examiner reported that the Veteran's current 
back condition "...is as less likely as not caused by or 
aggravated by the Veteran's service-connected residuals of 
the left and right os calcis fractures.  There is no causal 
relationship between th[e] Veteran's service-connected 
residuals of left and right os calcis fractures and the low 
back." 

In its October 2012 remand, the Board found that the October 
2011 VA examination and May 2012 addendum reports were 
inadequate, and that a new VA examination was necessary with 
regard to the low back disorder claim.  The Board observed 
that the October 2011 VA examiner's opinions regarding 
whether the low back disorder was related to either active 
service or to the service-connected bilateral os calcis 
fractures were conflicting and inadequate.  It observed that 
the examiner contradicted herself in several parts of the 
examination report.  The Board also found that the October 
2011 VA examiner did not provide any rationale for her 
initial opinion (which was later contradicted by her 
statement that there was no relationship between the 
bilateral heel disability and the current back disorder) 
that the low back disorder was likely related to the 
bilateral heel disability.  Finally, the Board noted that 
the Veteran has been diagnosed with various conditions 
involving the low back, and these various conditions had not 
been clearly delineated (e.g., which joints are affected by 
arthritis or myositis, etc.). 

In light of the various diagnoses, and the contradictions 
and missing opinions in the October 2011 VA examination 
report and the May 2012 addendum, the Board found that a new 
VA examination was necessary to assist in determining the 
exact nature and etiology of any and all low back disorders, 
including whether any of them were directly incurred in or 
related to an event or injury during active service, 
secondary to the service-connected residuals of bilateral 
fractures of the os calcis, or whether they preexisted 
active service and were aggravated therein.

The Board requested that the Veteran be afforded a VA 
orthopedic examination to address the causation or etiology 
of any current low back disorder.  As to the claimed back 
disorder, the Board requested that the examiner offer an 
opinion as to whether there was clear and unmistakable 
evidence that the Veteran had a low back disorder which pre-
existed his entrance into military service in 1966, and, if 
so, what was the nature of such disability.

The examiner was requested to address the service treatment 
records which indicated the Veteran injured his back in a 
1955 motor vehicle accident, that he experienced back pain 
during active service in May 1966, and the notation of gouty 
arthritis or myositis at separation.  The Board stated that 
if it was the examiner's opinion that a low back disorder 
pre-existed the Veteran's entrance into military service, 
he/she should then offer an opinion as to whether there was 
clear and unmistakable evidence that the preexisting low 
back disorder was not aggravated during service, and if 
there was in-service aggravation, what was the pre-existing 
baseline level of the disability prior to such aggravation.  
When answering these questions, the examiner was to comment 
on the notation of back pain in the service treatment 
records in May 1966 and the notation of gouty arthritis or 
myositis at separation. 

The Board then noted that if it was the examiner's opinion 
that the Veteran's low back disorder did not pre-exist 
service, he/she should offer an opinion as to whether it was 
at least as likely as not that the Veteran's currently 
diagnosed low back disorder(s) was/were incurred during or 
caused by active service.  The examiner was requested to 
comment on the Veteran's assertion (supported by the 
February 2006 VA examiner and a December 2007 letter from 
Dr. H.) that he "jammed" his back while jumping during the 
same injury in which he injured his heels during service in 
May 1966. 

The Board also requested that the examiner offer an opinion 
as to whether it was at least as likely as not that any 
current low back disorder had been caused or aggravated by 
the Veteran's bilateral os calcis disabilities.  The 
examiner was requested to address the Veteran's contention 
(supported by a July 2005 letter from Dr. H.) that the 
manner in which he had to walk due to his bilateral os 
calcis disabilities caused or aggravated his current low 
back disorder.  If the examiner opined that the Veteran's 
low back disorder was aggravated by his bilateral os calcis 
disabilities, the examiner was requested to attempt to 
identify the baseline level of severity of the low back 
disorder before the onset of aggravation.

In conjunction with the Board remand, the Veteran was 
afforded the requested VA examination in November 2012.  The 
examiner indicated that the claims folder was available and 
had been reviewed.  The examiner rendered diagnoses of 
osteoarthritis and degeneration of the lumbar or lumbosacral 
intervertebral disc.  Following examination, the examiner 
indicated that the Veteran's lumbar conditions were less 
likely than not incurred in or caused by the claimed in-
service injury, event, or illness.  The examiner also 
indicated that it was less likely than not that the 
Veteran's back conditions pre-existed his period of service.  

As to the issue of direct service incurrence, the examiner 
indicated that the Veteran's current back disorders were 
less likely than not related to an in-service diagnosis, or 
injury.  The examiner noted that the service treatment 
records did not support a single jumping injury so the 
Veteran's contention that he was injured with this "jumping 
injury" did not match the objective documentation in the 
service treatment records.  She noted that while the Veteran 
implied a specific injury while jumping in which injured his 
heels as well as his back, the medical records did not 
document this type of injury.  Furthermore, the Veteran's 
type of heel fractures, being "march fractures" were a 
repetitive type of injury (low impact) and not the type of 
injury that was normally sustained with a single jump injury 
(high impact).  She indicated that as the Veteran's march 
fractures were the type of repetitive motion injury to feet, 
the contention that he jammed his back when he jumped and 
injured his feet (a one-time event) did not match the 
mechanism of a low-impact, repetitive motion, as documented 
objectively by the service treatment records and type of 
fracture shown by x-ray.  She further noted that the 
arthritis evaluation during military service also revealed 
no back/spine diagnoses of pathology (which would have been 
fully evaluated as the Veteran was complaining of back and 
neck pain).  

In support of her opinion that the Veteran's back disorder 
less likely than not pre-existed service, the examiner noted 
that the Veteran had no complaints of ongoing back pain when 
entering service.  Furthermore, a full arthritis evaluation 
was done in the military which revealed no arthritis.  She 
noted that the Veteran's back would have been evaluated as 
part of the full arthritis examination.  The examiner also 
indicated that the Veteran did not have any evidence of gout 
and that even though the term "gout" appeared in the record 
in his initial VA examination after service, there was no 
laboratory evidence supporting this diagnosis then or now.  
The examiner also noted that the Veteran was termed with 
"myositis" during military service, but this was used to 
indicate a non-specific muscle pain.  She stated that 
without evidence of laboratory elevation of CPK, this term 
was incorrectly applied.  She noted that the term "myalgia", 
meaning "pain in the muscles" or even "muscle spasm", was a 
diagnosis which could have been applied at the time of 
diagnosis, but myositis was a specific term which was 
incorrectly used as there was not any laboratory evidence to 
support that diagnosis.  She indicated that the Veteran 
could not be said to have myositis.  The examiner further 
opined that as it was less likely than not that the 
Veteran's back conditions pre-existed service, the question 
of service aggravation of a pre-existing back disability was 
a moot point.  

However, as to the issue of entitlement to service 
connection for a low back disorder as secondary to service-
connected residuals of bilateral os calcis fractures, the 
opinion provided was insufficient and did not comply with 
the requested opinions/answers required by the Board in its 
October 2012 remand.  The examiner did not provide an 
opinion as to whether the Veteran's back disorders were 
proximately due to or the result of his service-connected 
bilateral os calcis.  The examiner also did not check the 
required box in item 5 concerning this question nor did she 
provide any rationale with regard to this question. 

As to the question of aggravation by a service-connected os 
calcis condition, the examiner stated that she could not 
determine a baseline level of severity of the claimed back 
disorder based upon medical evidence prior to aggravation or 
the earliest medical evidence following aggravation by the 
service-connected os calcis.  The examiner then checked the 
"no" box when asked whether regardless of an established 
baseline, was the Veteran's back disorder at least as likely 
as not aggravated beyond its natural progression by the 
service-connected os calcis.  In the rationale section, the 
examiner indicated that the Veteran's heel fractures had 
caused some disability, but the Veteran's primary back 
disabilities were significant enough to account for his pain 
and back disabilities.  The examiner noted that the Veteran 
did not have significant enough gait alteration from his 
bilateral calcaneal disabilities to account for aggravation 
of his back condition beyond the back conditions' natural 
progression.

In April 2013, the Board remanded this matter for an 
addendum report on the question of secondary service 
connection.  The Board requested that if available, return 
the claims folder to the November 2012 VA examiner to 
request an opinion as whether it is at least as likely as 
not (50 percent or greater probability) that the diagnosed 
back disorders were proximately due to or the result of the 
Veteran's  service-connected bilateral os calcis.  When 
rendering the opinion, the examiner was to address the July 
2005 letter from Dr. H., who noted that due to the way the 
Veteran had to walk related to his os calcis fractures he 
had developed degenerative joint disease in his back and had 
nerve impingement from disk and chronic pain syndrome that 
was managed with Lortab and Xanax therapy on a routine 
basis.  The examiner was also to provide detailed rationale 
for this opinion.  If the November 2012 examiner was not 
available, the claims folder be reviewed by another VA 
examiner, with the examiner rendering the requested opinion 
along with detailed rationale to support that opinion.

In May 2013, the requested opinion was provided by another 
VA examiner.  The examiner indicated that the Veteran's 
claims folder was available and had been reviewed.  The 
examiner, an orthopedic surgeon, opined that the claimed 
condition was less likely than not proximately due to or the 
result of the Veteran's service-connected condition.  The 
examiner indicated that the preponderance of the medical 
literature did not relate the diagnosed back condition to 
any os calcis disorder. 

In an additional May 2013 VA opinion from a VA podiatrist, 
it was indicated that the Veteran's claims file had been 
reviewed.  The examiner stated that it was less likely than 
not that the Veteran's claimed low back disorder, diagnosed 
as lumbar degenerative joint disease and spondylosis with 
severe chronic desiccation and mild neuroforaminal 
encroachment at L5-S1, claimed as secondary to service-
connected residuals of bilateral os calcis fractures was 
proximately due to, nexus of, aggravated by or aggravated 
beyond its natural and normal aging process.  The examiner 
indicated that this was based upon a comprehensive review of 
the clinical file, radiographs, CAPRI, and current medical 
literature.  

In support of her opinion, the examiner noted that the 
Veteran was diagnosed with probable stress (march) fractures 
of his right and left heels while in his first few months of 
training.  She stated that typically a stress fracture of 
the foot happens because of prolonged, repeated pressure on 
the foot.  Usually the fracture occurs in the lower leg and 
foot.  This type of stress fracture often affects the 
calcaneus, navicular or metatarsal bones.  She noted that 
the current radiographs of the heels did not demonstrate 
residuals from stress fractures.  The bone stock and 
alignment of the structural configuration were normal.  
Second, there was no medical based scientific evidence for a 
nexus of heel spurs with a past medical history of stress 
fractures.  She noted that as Roots discussed in his book on 
biomechanical function of the foot, heel spurs are due to 
the pull of the plantar fascia from its insertion on the 
medical process of the calcaneal tuberosity.  Therefore, 
there was no relationship of stress fractures to the 
formation of heel spurs.  

The examiner further observed that there was no diagnosis, 
treatment, or confirmed injury to the lower back in the 
active duty records and that there was no diagnosis of gout 
in the active duty records.  The examiner also indicated 
that anatomically, the calcaneal bones of the feet were not 
related to the lower back and that upon careful review of 
the current medical literature, there was no medically based 
scientific literature to support such a claim.  The examiner 
stated that she was in full in agreement with the May 2013 
VA examiner's opinion that the claimed condition was less 
likely than not proximately due to or the result of the 
Veteran's service-connected condition.  The examiner also 
indicated that she was in agreement with the May 2012 VA 
examiner's opinion that the claimed condition was less 
likely than not caused by the claimed in-service injury, 
event, or illness and that there was no causal relationship 
between the Veteran's bilateral heel fracture and his back 
condition.  

She stated that in her opinion, the 2005 letter from Dr. H. 
was a personal opinion not grounded in medically based 
scientific evidence.  Therefore, she was in total 
disagreement with his personal conclusions.  Furthermore, 
the claimed back condition was less likely than not 
aggravated by the stress fractures of the heels.  She stated 
that there was no medically based scientific evidence to 
support a claim of aggravation or aggravation beyond its 
normal and natural aging process.  

The Board finds that the weight of the competent, probative 
and credible evidence does not demonstrate that symptoms of 
the claimed low back disorder were chronic in service or 
continuous since service.  Service treatment records 
indicate the existence of back problems prior to enlistment 
in April 1966, with the December 1965 service enlistment 
examination report indicating that the Veteran had injured 
his back in a 1955 motor vehicle accident, and with the 
Veteran checking the yes box next to arthritis or rheumatism 
on his Report of Medical History; however, the examining 
physician wrote "no arthritis" in the physician's summary 
section of the report.  Moreover, clinical examination of 
the back was marked as "normal."  Thus, the Board concludes 
that the presumption of soundness attaches, as no current 
disorders of the low back were noted at service entrance.  
See Crowe v. Brown, 7 Vet. App. 238 (1994).  

Furthermore, while the Veteran was admitted for an arthritis 
work-up in April 1966, on discharge from the hospital it was 
noted that there was no clinical evidence of arthritis.  
Moreover, while the Veteran continued to report having 
arthritis or rheumatism on his June 1966 Report of Medical 
History, stating that he was treated for gouty arthritis in 
December 1965 (prior to service enlistment), the examining 
physician noted that the Veteran was checked for gout in 
service and was told that he had myositis rather than gouty 
arthritis, with clinical examination of the spine being 
marked as normal.  

In addition, the October 1966 National Guard enlistment 
examination report is negative for any back problems, 
findings, or diagnoses and the Veteran checked the "no" 
boxes when asked if he had arthritis or rheumatism on the 
Report of Medical History, with clinical examination of the 
lower extremities and back being marked as "normal."  Also 
while the Veteran checked the "yes" boxes next to recurrent 
back pain and arthritis or rheumatism on his June 1967 
Report of Medical History, physical examination performed at 
that time revealed that the Veteran had extreme soreness of 
the heels with excessive walking, and cervical spine 
tenderness to pressure, with otherwise normal back findings.  
Moreover, although it was noted in a January 1977 treatment 
record that the Veteran had been told that he had cervical 
spondylitis, physical examination performed at that time 
revealed full range of motion for all joints without 
swelling, tenderness, heat, effusion, etc.  In addition at 
the time of a May 1984 VA examination, cervical and lumbar 
curvatures were found to be well preserved and there were no 
spasms of the paravertebral muscles and no scoliosis of the 
spine, with full range of motion for the spine.  There were 
no findings of diagnosed back disorders, until many years 
following service.  Therefore, the clinical evidence does 
not reflect either an in-service low back injury or 
continuity of symptomatology, for reasons clearly noted 
above, with significant evidence against such a finding.  
Additionally, arthritis of the spine did not manifest within 
a year of service separation.  

The Board, however, must also consider the lay evidence of 
record in determining whether there is continuity of 
symptoms.  The Board has considered the statements of the 
Veteran, noting that the Veteran is considered competent to 
report back symptoms such as low back pain because this 
requires only personal knowledge as it comes to him through 
his senses.  Layno, 6 Vet. App. at 470.  However, competency 
of evidence differs from weight and credibility.  The former 
is a legal concept determining whether testimony may be 
heard and considered by the trier of fact, while the latter 
is a factual determination going to the probative value of 
the evidence to be made after the evidence has been 
admitted.  Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) 
("although interest may affect the credibility of testimony, 
it does not affect competency to testify").

In determining whether statements submitted by a veteran are 
credible, the Board may consider internal consistency, 
facial plausibility, and consistency with other evidence 
submitted on behalf of the claimant.  Caluza v. Brown, 7 
Vet. App. 498 (1995).  The Board is not required to accept a 
veteran's uncorroborated account of his active service 
experiences.  Wood v. Derwinski, 1 Vet. App. 190   (1991).

It is not disputed that the Veteran has reported back pain 
since his period of service.  However, as noted above, the 
Veteran was afforded numerous examinations in conjunction 
with his complaints which revealed normal clinical findings.  
Moreover, treatment records which have been associated with 
the claims folder make no reference to any findings of 
arthritis until years following service.  See Maxson v. 
Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period 
of absence of medical complaints for condition can be 
considered as a factor in resolving claim); see also Mense 
v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's 
denial of service connection where veteran failed to account 
for lengthy time period between service and initial symptoms 
of disability). 

As to any conflicting evidence, the November 2012 VA 
examiner indicated that the Veteran did not have any 
evidence of gout even though the term "gout" appeared in the 
record in his initial VA examination after service; there 
was no laboratory evidence supporting this diagnosis then or 
now.  She further observed that an arthritis evaluation was 
also done in 1966 and was negative for any arthritis.  She 
also noted that the Veteran was termed with "myositis" 
during service, but this was used to indicate nonspecific 
muscle pain and without evidence of laboratory elevation of 
CPK, this term was incorrectly applied as there was not any 
laboratory evidence to support that diagnosis.  She also 
stated that the term "myalgia" meaning "pain in muscles" or 
even "muscle spasm" were also diagnoses which could have 
been applied at the time of diagnosis.  She stated that the 
Veteran could not therefore be said to have had myositis 
either.  The examiner further indicated that it was less 
likely than not that the Veteran's back conditions pre-
existed service; therefore, the question of service 
aggravation of a pre-existing back disability was a moot 
point.  

For the above reasons, continuity has not here been 
established, either through the clinical record or through 
the Veteran's own statements.  While the Veteran is 
competent to report low back pain, his accounts of 
continuity of such pain since service are not considered 
credible in light of the lack of complaints of such pain 
within the record until recently, as outlined above.  

As to the Veteran's belief that his current low back 
disorders are related to his period of service, the Board 
acknowledges the holding of the U.S. Court of Appeals for 
the Federal Circuit in Jandreau v. Nicholson, 492 F.3d 1372 
(Fed. Cir. 2007).  Here, however, the question of causation 
extends beyond an immediately observable cause-and-effect 
relationship and, as such, the Veteran is not competent to 
address etiology in the present case.  Likewise, statements 
received from the Veteran's friends/co-workers/fellow 
soldiers, also do not provide a competent nexus between any 
currently diagnosed back disorder and the Veteran's period 
of service.  Neither the Veteran nor the authors of the lay 
statements have been shown to possess the required expertise 
to render such an opinion. 

Next, service connection may be granted when the evidence 
establishes a nexus between active duty service and current 
complaints.  When evaluating the weight of medical evidence, 
the Board is guided by the principle that the probative 
value of a medical opinion largely rests upon the extent to 
which such opinion is based upon a thorough evaluation of 
the Veteran's medical history, including but not limited to 
the medical evidence contained in the claims file.  See, 
e.g. Miller v. West, 11 Vet. App. 345, 348.  The Board may 
examine the factual foundation of a medical opinion, 
including whether the physician had access to relevant 
information of record.  Nieves-Rodriguez v. Peake, 22 Vet. 
App. 295, 303-304 (2008). 

The Board notes that the Veteran's private physician, Dr. 
H., in a 2007 statement indicated that based upon the 
Veteran's statement, the injury to the feet and back 
occurred at the same time.  The Board further observes that 
the February 2006 VA examiner indicated that was as likely 
as not that the current low back condition was related to 
the same in-service injury in which the Veteran injured his 
heels based upon statements received from the Veteran.  The 
Board notes that the service treatment records do not make 
reference to any back injury in conjunction with any foot 
problems.  The weight of a medical opinion is diminished 
where that opinion is ambivalent, based on an inaccurate 
factual premise, based on an examination of limited scope, 
or where the basis for the opinion is not stated.  See 
Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. 
Brown, 5 Vet. App. 140 (1993).

In contrast, the Board notes that the November 2012 VA 
examiner, following a comprehensive examination of the 
Veteran and a thorough review of the claims folder, 
indicated that the Veteran's currently diagnosed low back 
disorders were less likely than not related to any in-
service event or injury.  The Board is giving this opinion 
the most probative weight.  The Veteran's entire claims 
file, which at the time included his service treatment 
records, private and VA treatment records, and the 
statements from Dr. H. and the previous VA examiners, was 
reviewed.  Based on all of the evidence, the examiner 
rendered an opinion that was supported by a detailed and 
complete rationale.  There was no indication that the VA 
examiner was not fully aware of the Veteran's past medical 
history or that she misstated any relevant fact.  Thus, the 
Board finds this opinion to be the more probative evidence 
of record.

In sum, the preponderance of the evidence weighs against a 
finding that any current low back disorders developed in 
service or in the one year following service, or is 
otherwise related to his period of service. 

As to the question of secondary service connection, as noted 
above, the Veteran is not competent to render an opinion as 
to the whether his current back disorders are proximately 
due to or related to the service-connected os calcis.  
Likewise, the individuals who submitted statements in 
support of his claim have also not been shown to have the 
requisite expertise to render such an opinion.  The Board 
does note that Dr. H. in his July 2005 letter, stated that 
he felt like the foot problems had exacerbated the problems 
related to his back in that they some way acted 
synergistically to cause his pain.  The Board further notes 
the October 2011 VA examiner's opinion that the low back 
condition was at least as likely as not caused by the 
service-connected bilateral os calcis fractures.  As to Dr. 
H's opinion, the Board notes that while he rendered an 
opinion that appeared to relate the two, he did not provide 
detailed rationale to support his opinion, indicating that 
they in some way synergistically reacted to cause pain 
without further explanation.  The October 2011 VA examiner 
provided no rationale to support the opinion.  Additionally, 
neither examiner discussed the numerous mentions within the 
record of the Veteran's gait as being within normal limits.  
Such findings cast doubt on the assertion that a gait 
abnormality caused or contributed to a current spinal 
disorder.  As noted above, the weight of a medical opinion 
is diminished where that opinion is ambivalent, based on an 
inaccurate factual premise, based on an examination of 
limited scope, or where the basis for the opinion is not 
stated.  See Reonal, 5 Vet. App. at 461 (1993); Sklar v. 
Brown, 5 Vet. App. at 140 (1993).

In contrast, the May 2013 VA podiatrist, indicated that it 
was less likely than not that the Veteran's claimed low back 
disorder, diagnosed as lumbar degenerative joint disease and 
spondylosis with severe chronic desiccation and mild 
neuroforaminal encroachment at L5-S1, claimed as secondary 
to service-connected residuals of bilateral os calcis 
fractures was proximately due to, nexus of, aggravated by or 
aggravated beyond its natural and normal aging process.  The 
examiner provided in-depth rationale to support her opinion.  
There was no indication that the VA examiner was not fully 
aware of the Veteran's past medical history or that she 
misstated any relevant fact.  Thus, the Board finds this 
opinion to be the more probative evidence of record.

In sum, the preponderance of the evidence weighs against a 
finding that any current low back disorders were caused or 
aggravated by the Veteran's service-connected bilateral os 
calcis fractures.

As to the question of whether the Veteran had a low back 
disorder which pre-existed and was aggravated by service, 
the Board notes that while certain notations were made at 
the time of the Veteran's enlistment examination, the 
November 2012 VA examiner, following a thorough review of 
the claims folder and a comprehensive examination of the 
Veteran indicated that there was not clear and unmistakable 
evidence that there was a pre-existing back disorder.  The 
examiner provided detailed rationale for her opinion, 
addressing each disorder which was noted to have possibly 
existed prior to service, and citing to specific evidence in 
the service treatment records to support her opinion.  Based 
on all of the evidence, the examiner rendered an opinion 
that was supported by a detailed and complete rationale.  
There was no indication that the VA examiner was not fully 
aware of the Veteran's past medical history or that she 
misstated any relevant fact.  Thus, the Board finds this 
opinion to be the more probative evidence of record. 

In sum, the preponderance of the evidence weighs against a 
finding that any current low back disorder, to include 
lumbar degenerative joint disease and spondylosis, with 
severe chronic desiccation and mild neuroforaminal 
encroachment at L5-S1, pre-existed service and was 
subsequently aggravated by service; developed in service or 
in the one year following service, or is otherwise related 
to his period of service; or was proximately due to or the 
result of, to include way of aggravation, his service-
connected bilateral os calcis.  As the preponderance of the 
evidence is against the claim, the benefit of the doubt rule 
is not applicable.


ORDER

Service connection for a low back disorder, diagnosed as 
lumbar degenerative joint disease and spondylosis, with 
severe chronic desiccation and mild neuroforaminal 
encroachment at L5-S1, is denied.  




____________________________________________
T. D. JONES
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs