Citation Nr: 1335850 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 08-13 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to service-connected residuals of a compound fracture of the right tibia and fibula. REPRESENTATION Appellant represented by: Allen Gumpenberger, Agent ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1964 to December 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran submitted a Notice of Disagreement (NOD) with this determination in October 2007, and timely perfected his appeal in April 2008. In December 2007, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; a transcript of that hearing is of record. In a November 2009 decision, the Board reopened the Veteran's claim of service connection for a low back disability, and remanded the claim to the Appeals Management Center (AMC) for additional development. In April 2011, the claim of service-connection for a low back disability was again before the Board, at which time it was denied. The Veteran subsequently submitted a Notice of Appeal to the United States Court of Appeals for Veterans Claims (Court), indicating his disagreement with the denial of his claim. The Court issued a May 2012 Order vacating the April 2011 Board decision, and remanding the appeal for readjudication consistent with the parties' Joint Motion for Remand (JMR). As a final introductory matter, it does not appear that the issues of entitlement to an increased disability rating for residuals of a compound fracture of the right tibia and fibula and entitlement to compensation under 38 U.S.C.A. § 1151 for a right foot drop have been addressed by the agency of original jurisdiction (AOJ). In a November 2006 statement, the Veteran reported that his right foot drop was due to a recent back surgery, and further asked if this was due to negligence. In the May 2012 JMR, the Veteran's representative discussed that this issue was not addressed by the Board in its previous decision. Additionally, the Veteran submitted a July 2013 letter from his Orthopedist. The physician noted that over the last four degrades, secondary to altered weight bearing as related to his fracture, the Veteran's ankle had been slowly degenerating. In light of the fact that the Veteran's ankle condition had worsened over the last decade, he believed that he was entitled to a higher disability rating of 30 percent, in respect to the right lower extremity. As the AOJ has not yet adjudicated the issues of an increased disability rating for residuals of a compound fracture of the right tibia and fibula and entitlement to compensation under 38 U.S.C.A. § 1151 for a right foot drop, they are referred back to the AOJ for appropriate action. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's diagnosed low back disorders are caused and/or aggravated by service-connected residuals of a compound fracture of the right tibia and fibula. CONCLUSION OF LAW The criteria for a grant of service connection for a low back disorder, to include as secondary to service-connected residuals of a compound fracture of the right tibia and fibula, have been met. 38 U.S.C.A. §§ 1110, 1133, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In light of the favorable disposition, a discussion as to whether VA's duties to notify and assist the appellant have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. II. Legal Criteria Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 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. Certain listed disabilities may be presumed to have been incurred during active military service if manifested to a degree of 10 percent within the first year following 90 days or more active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service connected disease or injury. See 38 C.F.R. § 3.310(a) (2012). The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. III. Background The Veteran contends that he has a leg length discrepancy due to his service-connected compound fracture of the right tibia and fibula, and that this condition caused his current low back disability. The Veteran's service treatment records reflect treatment for a compound fracture of the right tibia and fibula following a motorcycle accident in November 1966. There was no documentation of a back injury noted at that time. A July 1967 treatment record noted that the Veteran's legs were the same length following his right leg injury. A May 1968 treatment record noted some body irregularity of the right tibia and fibula. A May 1973 medical record revealed "no shortening present." November 2001 VA treatment records reflect that the Veteran slipped on wet leaves and fell, injuring his back. He subsequently experienced back pain, right foot drop, and underwent an operation to repair a herniated disc. The treatment records indicate that the Veteran received strength training for his right foot drop and resulting abnormal gait. The Veteran underwent a VA bones examination in March 2002. The Veteran denied any consistent back pain prior to his November 2001 injury and noted that he had seen a chiropractor on two occasions for back strains since leaving service. The Veteran reported that he never walked right since the initial injury. Additionally, he reported that his right leg had been shorter since the initial injury, stretching his lower back and leg to disc herniation. MRI of the spine revealed marked disc height associated with degenerative disc disease. The impression was status post L5, right side hemilaminectomy and discectomy for a large herniated disc. The examiner stated that it was difficult to determine the etiology of the Veteran's back condition and noted that the degenerative disc findings were considered part of the normal aging process, therefore, the Veteran's back problems were more likely due to his history of physical work. In an April 2002 addendum opinion, the VA examiner noted that the Veteran had chronic right ankle pain and an abnormal gait since service. The examiner concluded that it was possible that the Veteran's chronic right ankle pain and change of gait caused some stress in the Veteran's back, which he believed could lead to degenerative disc disease. In view of his active physically strenuous job history and change of gait due to right leg distal fracture and residual, the examiner would estimate that the Veteran's current disc herniation and the right sciatica type condition were 50 percent attributable to his service- connected right leg condition. The Veteran was afforded another VA examination in June 2003. On examination, the supine position measurement revealed a 2.25cm leg length discrepancy, with the right leg being shorter than the left leg. The examiner concluded that the Veteran's post L4-5 diskectomy and right hemilaminectomy were more likely than not residuals of his right lower leg condition, and the subsequent spine malalignment with asymmetric weigh bearing on short right leg compared to longer left leg. In an August 2003 letter, Dr. H. C. stated that the Veteran had a 2.25cm leg length discrepancy. In an August 2003 letter, Dr. V. C. stated that the Veteran had a leg length discrepancy since the 1960's, which was never corrected. The physician opined that it was possible for a leg length discrepancy to contribute to or accelerate lumbar disc degeneration and disc herniation. A November 2003 VA examination revealed no significant leg length discrepancy. On examination, the reported leg length discrepancy was less than 1cm. X-rays revealed old united fractures at the right distal tibia and fibula with minimal valgus angulation. The impression was an unremarkable right ankle. The examiner noted that there were many possible anatomical and functional causes of a leg length discrepancy and that x-ray of the right lower extremity did not reflect a malunion of the compound fracture of the right tibia and fibula. He concluded that it was not likely that the Veteran's service-connected right leg injury was the cause of his leg length discrepancy. The Veteran was afforded another VA examination in May 2007. X-rays revealed an old healed fracture of the right distal tibia and fibula. The examiner noted that superimposed acute pathology was not demonstrated. On examination, there was no evidence of right leg shortening. The examiner concluded that right tibia/fibula fracture, which occurred during his service time with negligible residual functional impairments. In a December 2007 letter, the Veteran's treating medical assistant noted that his leg length discrepancy was sometimes a contributing factor, if untreated, to disc herniation, and appeared to be so in this case. It was possible that the leg length discrepancy was the cause of the herniation and certainly may have contributed to the hastening of his condition. A December 2007 letter from the Veteran's chiropractor noted that he treated the Veteran for low back pain following a vehicle accident in 2003. He noted that the Veteran's past medical history included a fracture of his right tibia, fibula, and ankle in 1962, leaving him with a leg length discrepancy. It was his opinion that a long standing leg length discrepancy continued to place stress on the Veteran's spine, and would have predisposed him to progressive degenerative joint disease, and a accelerated rate of lipping and spurring of his lumbar vertebrae. All of these conditions would have caused future pain and discomfort, and contributed to the development of a disc herniation. In a May 2008 letter, Dr. E. C. stated that the Veteran had a leg length discrepancy since the 1960's and the condition possibly contributed to accelerating his lumbar disc degeneration, as well as to the development of the herniation. The Veteran was afforded a VA examination in February 2010 to determine the etiology of his low back disability. The examiner noted that there was no evidence of low back pain or disability until 2001, following the Veteran's slip and fall. The examiner stated that although a leg length discrepancy of 2.25cm was noted in some of the recent treatment records, it was of unknown origin and not recorded in any medical records during service or at any time until 2003. The impression was L4-5 diskectomy/hemilaminectomy following a November 2001 injury and resulting in right foot drop. The examiner concluded that the Veteran's herniated disc was more likely a result of his fall in November 2001 and less likely a result of his service-connected injury. The examiner further noted that there was no evidence to support a finding that the Veteran's degenerative disc changes were related to a leg length discrepancy or to service-connected compound fracture of the right tibia and fibula. IV. Analysis In light of the evidence, the Veteran is entitled to service connection for a low back disorder as secondary to his service-connected residuals of a compound fracture of the right tibia and fibula. Multiple private physicians and VA examiners diagnosed the Veteran with degenerative disc disease and disc herniation. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). There are no medical records refuting the Veteran's diagnosed low back disabilities, to include degenerative disc disease and disc herniation. The Board notes that while the February 2010 VA examiner stated that there was no evidence to support a finding that the Veteran's degenerative disc changes were related to a leg length discrepancy or to service-connected compound fracture of the right tibia and fibula, the April 2002 VA examiner concluded that it was possible that the Veteran's chronic right ankle pain and change of gait caused some stress in the Veteran's back, which he believed could lead to degenerative disc disease. The examiner estimated that the Veteran's current disc herniation and the right sciatica type condition were 50 percent attributable to his service- connected right leg condition. Additionally, the June 2003 VA examiner concluded that the Veteran's post L4-5 diskectomy and right hemilaminectomy were more likely than not residuals of his right lower leg condition, and the subsequent spine malalignment with asymmetric weigh bearing on short right leg compared to longer left leg. The Board finds these opinions to be credible as it was based on a review of the claims file and the Veteran's medical history. Further, the Veteran provided multiple statements from his private treating physicians and medical assistant stating that it was possible for a leg length discrepancy to contribute to or accelerate lumbar disc degeneration and disc herniation. Additionally, the Veteran's chiropractor stated that it was his opinion that a long standing leg length discrepancy continued to place stress on the Veteran's spine, and would have predisposed him to progressive degenerative joint disease, and a accelerated rate of lipping and spurring of his lumbar vertebrae. All of these conditions would have caused future pain and discomfort, and contributed to the development of a disc herniation. For the foregoing reasons, the Board concludes that the balance of positive and negative evidence is at the very least in relative equipoise with respect to the Veteran's low back disorder claim. He is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Indeed, where the evidence supports a claim or is in relative equipoise, the appellant prevails. 38 U.S.C.A. 5107 (b); Gilbert, 1 Vet. App. at 53. Accordingly, the Board finds that service connection for a low back disorder, as secondary to service-connected residuals of a compound fracture of the right tibia and fibula, is warranted. ORDER Service connection for a low back disorder, as secondary to service-connected residuals of a compound fracture of the right tibia and fibula, is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs