Citation Nr: 1335597 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-01 914 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a low back disorder including as secondary to service connected callosities of the feet. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, wife ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from December 1973 to May 1974. This matter initially comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Jackson, Mississippi Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a March 2011 hearing which was held at the RO. A transcript of that hearing is of record. The Veteran's claim for service connection for a low back disorder was reopened and remanded for evidentiary development in a July 2011 Board decision. This case was again remanded in December 2011 and May 2013 for further development. A review of the Virtual VA and VBMS paperless claims processing systems does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. A low back disability to include lumbar degenerative disc disease was not manifest during active service, lumbar arthritis was not manifest to a compensable degree within one year of separation from active duty, and a lumbar disorder is not otherwise attributable to active service. 2. A low back disability was not caused by or permanently made worse by the service connected disability callosities of the feet. CONCLUSION OF LAW The criteria for service connection for a low back disability to include as secondary to a service connected disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in April 2007 and January 2008, VA advised the Veteran of the information and evidence needed to substantiate a claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. The appeal was most recently readjudicated in the June 2013 supplemental statement of the case. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and identified private medical records. During the March 2011 Board hearing, the Veteran's wife indicated that subsequent to service the Veteran received treatment from a Dr. E around 1976 for his back. She noted that unfortunately records of that treatment had since been destroyed. As such, a remand for the purpose of obtaining the above records would be futile in light of indication that they cannot be obtained. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. Moreover, during the March 2011 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(3). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2) ; 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. ANALYSIS The Veteran appeals the denial of service connection for a low back disability. He contends that his back problem started in service when he rolled off the top bunk bed and landed on his back. He claims he could only lay there until someone came to help him. Since that time, he has had incidents involving lifting things which has worsened his back he claims. During the March 2011 Board hearing, the Veteran testified that he initially injured his back during service when he rolled out of the top bunk bed. His wife also remembered that the Veteran had injured his back at that time. The Veteran reported that he thought he had been informed by medical personnel that the way he walked, due to his service-connected callosities, may have affected his lower back. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for some chronic diseases, including arthritis, may be granted if manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Section 3.310 was amended effective October 10, 2006, the claim for service connection was filed after the amendment as such the current version of 38 C.F.R. § 3.310 is applicable to the claim on appeal. Based on the evidence of record, the Board finds that the preponderance of the most probative evidence is against entitlement to service connection for a low back disability. To that end, service treatment records are negative for any diagnoses, treatment and/or complaints for the lumbar spine. Treatment, however, for calluses of both feet in January 1974 is shown in the service treatment records. A separation examination and/or report of medical history at separation are not of record. In the claim for compensation received in September 1975, the Veteran reported a back injury while in basic training in March 1974. Objective evidence, however, of a back disability in the record is not shown until December 2002. During that time, the Veteran reported that he had injured his back in late summer while trying to pull up a post. He also complained of an old back injury from 1973. Significantly multiple medical records on file through the 1990's fail to reveal pertinent complaints or findings. While the Veteran complained of back pain a little over a year after separation, objective evidence of a back disability is not shown at time. There is also no evidence of compensably disabling arthritis within one year of separation from active duty. Rather, a review of the record discloses that the Veteran's lumbar spine disability first manifested decades post service. The passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The claims folder does not contain any competent evidence relating the Veteran's lumbar disability to service. The Board has reviewed all service treatment records, all VA medical records of file and private treatment records. These records do not include any opinion linking the Veteran's disability to service. Rather, the August 2011 VA examiner opined that it was less likely than not that his lumbar spine arthritis was related to service. The examiner found that it is likely at this point, given his age, that the degenerative changes are likely atraumatic and age related. The examiner noted that there was no history of facture to the lumbar spine and that there was no evidence pointing to the fact that these degenerative changes in his spine are directly related to his service time or any injuries sustained while in service. The December 2011 VA examiner also found that the Veteran had axial back pain which is quite common for someone his age and stature. To the extent, the Veteran claims that his low back disability was caused and/or aggravated by his service connected callosities the evidence is also against this claim. To that end, the August 2011 VA examiner opined that the Veteran's low back arthritis was less likely than not related to his service connected foot callosities. Rather, he found that, at this point given his age, the degenerative changes are likely atraumatic and age related. The December 2011 VA examiner also found that the Veteran had axial back pain which is quite common for someone his age and stature. The Veteran, he stated, does not have any leg length discrepancies or noticeable gait abnormality, and that there is no support in the medical literature for foot callosities or chronic foot pain to cause back pain. The examiner did not find a medically supported reason for a secondary cause of his back pain. He, therefore, opined that the Veteran's primary axial back pain is not related to any of his other diagnoses. In VA opinions rendered in August 2012 and June 2013, the examiner opined similarly to the December 2011 VA examiner. He, however, added that the Veteran's foot calluses would not aggravate his axial back condition. He further added that the Veteran did not have appreciable gait abnormality on physical examination and that there is no support in the medical literature for foot callosities or chronic foot pain to cause or aggravate back pain particularly in the absence of any leg length discrepancy or clinic gait abnormality. The Board finds that the medical opinions rendered by the VA examiners are persuasive and assigns them greater probative weight than the lay statements of record. The opinions of the VA examiner were rendered by medical professional with the expertise to opine on the matter at issue in this case. The examiner addressed the Veteran's contentions and based the opinions on a review of the claims folder. In sum, the most probative evidence of record is devoid of a showing that the Veteran's low back disability is related to service and/or a service connected disability. Hence, entitlement to service connection is denied. In making this decision the Board notes that the Veteran is competent to report back problems and the circumstances surrounding such. The Board also acknowledges the testimony presented by his wife and note that she is too competent to report what she was told by the Veteran regarding his back injury. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), however, the specific issue in this case, the etiology of his lumbar degenerative joint disease, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Here, the VA medical opinions are far more probative. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a low back disorder including as secondary to service connected callosities of the feet is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs