Citation Nr: 1332227 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-23 275A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back condition, claimed as secondary to the Veteran's service-connected bilateral pes planus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran had active service from April 1962 to August 1966. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2008 decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). The Veteran and his wife appeared and testified at a Travel Board hearing held before the undersigned Veterans Law Judge in February 2011. A transcript of the hearing has been associated with the claims folder. This case was previously before the Board in June 2011 and May 2013 when it was remanded for additional development. In a VA treatment note dated in April 2012 it was noted: "He is asking about increasing service connection for feet." The Board finds that the issue of entitlement to an evaluation in excess of 30 percent disabling for bilateral pes planus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has presented credible lay assertions sufficient to establish a continuity of symptomatology referable to a lumbar spine disorder beginning during his active duty service. 2. The currently demonstrated spine disorder manifested by degenerative joint disease of the lumbar spine is shown as likely as not to be due to an injury or other event of the Veterans period of active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for the establishment of service connection for degenerative joint disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nevertheless, a showing of continuous symptoms should still be a factor for consideration of whether a causal relationship exists between a Veteran's current disability and any in-service incident. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (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, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran seeks service connection for a low back condition. The Veteran contends that this condition is either related to injuries that he suffered during his active service, or that the condition is secondary to his service-connected bilateral pes planus. Service treatment records reveal that the Veteran was on light duty due to his pes planus and wide feet. X-ray of the thoracic and lumbar spine in January 1966 was negative. The Report of Medical Examination at separation from service in July 1966 does not reveal any diagnosis of any back disability. The Veteran was afforded a VA medical examination in October 1966. The Veteran did not complain of and was not diagnosed with any back disability. In October 1987 the Veteran was afforded a VA medical examination in regard to his feet. The Veteran was noted to go to a chiropractor for treatment of his back. In May 2000 the Veteran complained of lower back pain. In August 2000 the Veteran complained that his back hurt when he walks. An x-ray dated in May 2000 reveals lumbosacral spine arthritis. In a lay statement dated in January 2003 a friend of the Veteran reported that the Veteran was in good health prior to service and that after service he was always having trouble with this back. The Veteran, in a statement submitted in February 2003 indicated that he injured his back in service when he was hit by a food cart and fell up against the tailgate of a vehicle. In an x-ray report dated in February 2003 the Veteran was noted to have a history of disc problems. X-ray revealed moderately advanced degenerative changes with disc space narrowing at all levels and slight scoliotic deformity. In September 2003 the Veteran was assessed with chronic low back pain. In June 2004 Dr. D.G.H., DPM, stated that the Veteran had moderately advanced degenerative changes with disc space narrowing at all levels with slight scoliotic deformity. In November 2004 the Veteran underwent an examination regarding his feet. It was noted that the Veteran had right sciatica. A March 2006 treatment note indicates that the Veteran's recurrent low back pain appeared to be musculoskeletal in nature. In a statement dated in September 2006 an individual who served with the Veteran reported that the Veteran hurt his back during June or August of 1963 during a PRT test. The test was reported to consist of running an obstacle course while performing a fireman's carry in full field pack. After this event the Veteran was noted to report that he hurt his back from carrying another soldier. In a private treatment record dated in December 2006 the Veteran was diagnosed with low back pain. A magnetic resonance imaging (MRI) scan was noted to reveal a large L2-3 disc herniation with multilevel lumbar disc degeneration at L3-4, L4-5, L5-S1 and also at T11-12 and T10-11. There appeared to be large fragment of the disc in the canal centrally as well as to the left of midline and foraminal stenosis as well as some mild congenital stenosis. In January 2007 the Veteran reported that when the original disability claim was submitted for his feet, he was also suffering from back pain but never made the connection of feet/back until that then. In a statement dated in March 2007, Dr. W.M.M., DC, reported that he treated the Veteran from January 1994 to August 1996 for low back pain. His initial diagnosis was low back strain, acute, with subluxations of L4, L5 and sacroiliac joints bilaterally. The Veteran worked at a local diner as a cook and was required to be on his feet for 12 hours a day. The Veteran was referred to a medical doctor after the pain was near crippling. The chiropractor indicated that all of his records had been destroyed. In a treatment note dated in April 2007 the Veteran was noted to report under onset that he had back pain for years. He reported two back injuries in service, including an injury while performing a fireman's carry. He indicated that he had a burning sensation in the leg after the fireman's carry. The Veteran was afforded a VA medical examination in April 2008. The Veteran reported that his low back pain began in 1963 when he carried a heavier soldier in a fireman's carry. He reported that he went to sick bay and was given APCs and had light duty for 14 months. After physical examination the Veteran was diagnosed with advanced degenerative changes of the lumbar spine, anterior and lateral osteophytes were more prominent, and disc space narrowing was present at all levels. It was noted that the service treatment records were not available for review. The examiner rendered the opinion that it is less likely as not that the Veteran's back disability is caused by or a result of pes planus. The examiner provided the rationale that pes planus does not cause degenerative arthritis of the spine. The lumbar degenerative arthritis is a result of the wear and tear of his lumbar spine, just like he also has wear and tear of his feet which in the x-ray in 2003 showed also degenerative changes most prominent at the first metatarsophalangeal joints. The examiner noted that the Veteran had another reason for his lower extremity pain which was the circulation problem and his heavy weight. The lumbar spine x-ray showed advanced degenerative changes that have significantly progressed when compared to previous examination. The anterior and lateral osteophytes are more prominent. Disc space narrowing is now present at all levels. Veascular arterial studies of both lower extremities showed moderate diffuse hemodynamic disease bilaterally. His weight gain was also noted to contribute to his back pain. From age 22 to age 44, he was mostly standing as he was cooking for his customers in his restaurant. In his history he stated that he hurt his back when he carried a soldier in a fireman's carry in 1963. The examiner noted that the current back condition is more likely than not a result of the conditions stated above. A VA provider indicated in November 2009 that the Veteran's feet problems could have been the initial reason as of why his other joints got the way they are today. In March 2010 the Veteran was afforded another VA medical examination. The Veteran reported that his lower back pain began while in service. He indicated that in service he was hit in the back by a food cart and that he had back pain during a PRT test where he carried a large service member. After examination the Veteran was diagnosed with advanced degenerative joint disease of the lumbar spine. The examiner rendered the opinion that the Veteran's degenerative joint disease of the lumbar spine is less likely as not caused by or a result of service connected pes planus. The rationale provided was that the examiner had not come across a study in the medical literature that substantiated the Veteran's contention that flat feet causes degenerative joint disease of the lumbar spine. The examiner noted that the "most risk factor for [degenerative joint disease (DJD)] LS spine is obesity which this [Veteran] has." At a hearing before the undersigned Veterans Law Judge in February 2011 the Veteran reported that he injured his back in service. The Veteran further indicated that he had back problems immediately after separation from service. A private naturopathic physician in July 2011 rendered the opinion that the Veteran's back pain was secondary to and exacerbated by his constant and intense foot pain. The provider noted that the Veteran's foot pain was very severe, at least an 8 on a scale of 0 to 10. The provider indicated that pain of this sort will alter body mechanics and place strain on all joints superior to the feet, and can cause problems with ankles, knees, back and neck. A VA medical opinion was obtained in August 2011. The opinion was rendered that the claimed condition is less likely than not proximately due to or the result of the Veteran's service-connected condition. The rationale provided was that there are no documented studies which show that pes planus can cause degenerative joint disease of the lumbar spine. Degenerative joint disease was noted to be predominantly caused by wear and tear, obesity and trauma. The Veteran was noted to have degenerative joint disease in multiple areas including his shoulder and neck and feet. The examiner stated that the degenerative joint disease the Veteran has in multiple joints and areas of his spine are most likely due to obesity, and normal wear and tear of his joints and spine, not flat feet. The examiner further opined that the Veteran's condition was not at least as likely as not aggravated beyond its natural progression by his service connected condition. The examiner noted that pes planus does not aggravate degenerative joint disease of the low back. The Veteran's morbid obesity aggravates his back because of the increased weight on the spine. The examiner stated that his flat feet do not aggravate his spine, there is simply no credible anatomic mechanism for that. An addendum was added in April 2012. The examiner opined that "[i]t is less likely than not that the [V]eteran's DJD lumbar spine was caused directly by military service. The treatment records are silent regarding any back complaints. The most likely cause of his lumbar DJD is ageing, lifestyle and employment choices, and obesity." In a March 2012 VA treatment note it was reported that the Veteran's chronic low back pain began over 40 years prior. It started insidiously during his years of military service. It was reported that the Veteran's chronic low back pain was likely due to longstanding advanced degenerative disc disease (DDD) and DJD. In June 2013 the Veteran was afforded another VA medical examination. The Veteran was diagnosed with DJD, lumbar spine. The examiner noted that the Veteran had DJD in the spine and multiple joints. The service treatment records and records within one year of leaving military service were noted to be silent regarding back issues. The back problems were reported by the examiner to not have started until over 20 years after military service. The Veteran was noted to have owned a restaurant and to have cooked there until 12 years prior to the examination. After examination the examiner rendered the opinion that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned: The Veterans DJD in his spine did not get diagnosed until at least twenty years after military service and there is no record of any symptoms or treatment during military service. The Veteran has arthritis in multiple joints as well as his spine. The most likely cause of the arthritis in multiple joints including his spine is ageing, normal wear and tear, obesity and lifestyle and employment choices, long after military service. It is less likely than not that the Veterans arthritis had its onset during military service or was caused by military service. The Veterans [service connected] pes planus does not aggravate his DJD lumbar spine. His pes planus was present long before his DJD lumbar spine and has neither a causal or aggravating effect on his DJD lumbar spine. There are no documented studies which show that pes planus can cause or aggravate DJD of the lumbar spine. DJD is predominantly caused by wear and tear, obesity and trauma. The [Veteran] has DJD in multiple areas including his shoulder and neck and feet. The DJD he has in multiple joints and areas of his spine are most likely due to obesity, and normal wear and tear of his joints and spine, not flat feet. Entitlement to service connection for degenerative joint disease of the lumbar spine is granted. It is acknowledged that the Veteran's service treatment records do not reveal any complaint, diagnosis, or treatment for any back disability. However, the Veteran has competently and credibly reported that he injured his back in service. The Veteran has reported that he was injured when he strained his back while carrying another service member during a PRT test in service. The Veteran has submitted the statement of a fellow serviceman that supports this assertion. It is acknowledged that VA examiners in April 2012 and June 2013 rendered the opinion that the Veteran's back disability is unrelated to the Veteran's active service but is related to wear and tear, aging, and the Veteran's obesity. However, upon further consideration of the VA examination report dated in April 2008, based upon the Veteran's reports of injuring his back in service, the examiner, after listing the Veteran's moderate hemodynamic disease bilaterally, weight gain, standing as he cooked for customers in his restaurant, and the Veteran's history of his back injury in service, stated that the Veteran's current back condition is more likely than not a result of the conditions stated above. As noted above, the Board finds the Veteran's reports of injuring his back in service both competent and credible and, therefore, finds the April 2008 VA examination to be probative. In addition, the Veteran has competently and credibly reported at VA medical examinations, that his back pain began in service. The Veteran has also submitted a lay statement from a friend that reports that the Veteran was in good health prior to service and that after service he was always having trouble with his back. Thus, the Veteran has demonstrated continuity of symptomatology as degenerative joint disease is a disability considered to be chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As the Board finds the Veteran's reports of injuring his back in service and his indication that his back pain began in service and that it bothered him immediately after separation from service to be competent and credible, and as the April 2008 VA examiner did not dissociate the Veteran's in service injury from his current back disability, the Board finds that the evidence is at least in equipoise. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board concludes that degenerative joint disease of the lumbar spine is related to his active service. As such, service connection for degenerative joint disease of the lumbar spine is granted. ORDER Service connection for degenerative joint disease of the lumbar spine is granted. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs