Citation Nr: 1612961 Decision Date: 03/30/16 Archive Date: 04/07/16 DOCKET NO. 04-30 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to a service-connected left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from November 1975 to March 1976, October 1977 to May 1979, and from August 1979 to February 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran lives in Germany and jurisdiction over the claims file is held by the Foreign Case Division of the Pittsburgh RO. In May 2007, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for additional appellate action. FINDING OF FACT A chronic low back disability, currently diagnosed as degenerative disc disease and lumbago, was demonstrated years after service, is not etiologically related to any incident of active military service, and is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW A chronic low back disability was not incurred in or aggravated by active service and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connections is warranted for a low back disability as it was incurred secondary to a service-connected left knee disability. In the alternative, he contends that the low back condition is the result of an in injury during active duty service. The Veteran specifically argues that his left knee condition has resulted in a gait and posture abnormality that over the years has weakened the muscles of the low back causing a chronic disability. Service connection is provided for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Initially, the Board finds that the evidence establishes a current low back disability. The Veteran was diagnosed with degenerative disc disease of the lumbar spine and lumbago upon VA contract examinations in April 2004 and November 2012. The Veteran has also provided competent and credible reports of low back pain throughout the claims period. The Board therefore finds that a current low back disability is demonstrated. Although the Veteran clearly has a lumbar spine condition, the Board finds that the competent medical evidence of record does not demonstrate a relationship between the back disability and the service-connected left knee disorder. None of his examining physicians have identified a nexus between the two disabilities; in fact, the only medical opinion of record weighs against the claim. After reviewing the complete claims file, including the April 2004 and November 2012 VA contract examination reports, a VA examiner provided an opinion against secondary service connection in October 2014. The VA examiner determined that the Veteran's lumbar spine and left knee conditions are completely separate and distinct from one another and are anatomically unrelated. The examiner also observed that the Veteran does not manifest an antalgic gait, a gross limp, or leg length discrepancy. Thus, the examiner found that the claimed low back condition is completely unrelated to the service-connected left knee disability. The VA examiner's opinion was accompanied by a well-explained and supported rationale and is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board has also considered the statements of the Veteran in support of his claim. The Veteran is competent to report observable symptoms of disability, such as low back pain and an abnormal gait accompanying his service-connected left knee, but his opinion as to the cause of the claimed low back disability simply cannot be accepted as competent evidence, absent any indication of medical training, credentials, or other expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). Additionally, the Board observes that while the Veteran contends his left knee has caused postural and gait changes of such severity that they have altered the physiology and mechanisms of his lumbar spine, the April 2004 and November 2012 contract examinations are both completely negative for any gait, limp, or leg length abnormalities. The April 2004 examiner observed that the Veteran was right-leg dominant because of pain in the left knee, but there were no limp or gait changes. The Veteran's legs and muscles were also entirely symmetrical without evidence of abnormal weight-bearing. The Board therefore finds that the Veteran's statements regarding the presence of gait abnormalities are outweighed by the competent objective medical evidence establishing that he does not manifest a gait, limp, or leg length discrepancy. As such, service connection on a secondary basis is not warranted as the evidence establishes that the service-connected left knee condition has not caused or aggravated the claimed low back disability. The Board must also consider whether service connection is warranted as directly due to service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). In this case, there is no competent evidence of a link between the low back disability and service. Service treatment records document one instance of treatment for low back pain in June 1984 when the Veteran presented to the emergency room with mid-back and lower chest wall pain. He had no previous history of symptoms and was diagnosed with chest wall pain resulting in shortness of breath. He was treated with rest and fluids and no follow-up care was indicated or sought. He also denied experiencing a history of recurrent back pain on reports of medical history accompanying physical examinations throughout active duty service. The post-service record also does not document any complaints of back pain until the Veteran's claim was received in January 2003, more than 15 years after his separation from military service. He reported during the April 2004 contract examination that he had experienced intermittent back pain since 1984, but this statement is at odds with the Veteran's in-service denials of back pain. In any event, the absence of contemporaneous lay or medical evidence of a chronic disability until years after service weighs against the Veteran's claim for service connection. The Board also observes that there is no competent medical evidence in support of the claim for direct service connection and none of the Veteran's physicians have identified a link between the Veteran's low back disability and service. The Veteran has also not reported a continuity of symptoms since active duty, as he reports only an intermittent pattern of low back pain since 1984. The claims file also contains a VA medical opinion weighing against direct service connection provided in the October 2014 VA addendum opinion report. The reviewing examiner determined that the Veteran's current condition was not due to service, based on the presence of a single episode of acute pain in June 1984 and the denial of recurrent back pain in January 1986. In sum, the post-service record shows that the first evidence of the Veteran's claimed disability was several years after his separation from active duty. In addition, the competent medical evidence does not establish that the Veteran's low back disability was incurred secondary to a service-connected disability or due to the single acute incident of back pain during active service. The Board therefore concludes that the evidence is against a nexus between the Veteran's low back condition and a service-connected disability or active duty service. The Board must conclude that the preponderance of the evidence is against the claim, and it is denied. 38 U.S.C.A. § 5107(b) (West 2014). Duties to Notify and Assist VA has certain duties to notify and assist a veteran in the substantiation of a claim. VA 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. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) regarding service connection on direct and secondary bases was furnished to the Veteran in April and June 2003 letters. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in a June 2007 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Complete notice should be given before an initial AOJ decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. While complete VCAA notice, specifically notice of the Dingess elements, was provided in June 2007 after the initial adjudication of the claim in March 2004, this timing deficiency was remedied by the issuance of appropriate notice followed by readjudication of the claims. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The claim was readjudicated in the October 2014 SSOC and any timing deficiency has been remedied. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and private medical records, all translated from German to English as required. The Veteran resides in Germany and has not received any VA treatment for the claimed low back condition. Additionally, he was provided proper VA contract examinations in April 2004 and November 2012 conducted by private physicians in Germany in response to his claim. Addendum VA medical opinions were obtained in October 2014 addressing service connection on a direct and secondary basis. The Board also finds that VA has complied with the May 2007 remand orders of the Board. In response to the Board's remand, the Veteran was examined on a contract basis in November 2012 and VA medical opinions were added to the claims file in October 2014 addressing the etiology of the claimed low back condition. The Board instructed the medical examiner to provide opinions addressing whether the Veteran's claimed low back disability is etiologically related to active service or secondary to a service-connected left knee disability, to include whether the low back disability is aggravated by the left knee. Although the October 2014 VA addendum opinion report does not use the exact word, "aggravation," it is clear to the Board beyond any doubt that any opinion to this effect would be negative based on the rationale contained in the medical opinion report. The examiner, after stating that the Veteran's low back disability is not "proximately due to or the result of the Veteran's service connected condition," further noted that the service-connected left knee and claimed low back disability are two separate and anatomically distinct conditions that are not related in any way. The examiner also responded to the Veteran's specific arguments in this case by noting that the Veteran does not manifest an antalgic gait, a gross limp, or a leg length discrepancy; therefore, there is no mechanism by which the left knee may be cause or aggravate the diagnosed low back disability. The Board is cognizant that the Court of Appeals for Veterans Claims has held that the language "not due to," "not caused by," or "not related to" a service-connected disability is insufficient to address the question of aggravation under § 3.310(b). Allen v. Brown, 7 Vet. App. 439, 449 (1995). However, the rationale provided in the October 2014 addendum report is sufficient to clearly establish that the VA medical provider did not identify any etiological relationship, either by direct causation or aggravation, between the low back and the left knee. The Board also finds that remanding for an additional opinion would only cause undue delay in this case that has been in appeal status for over 10 years (due, in part to the Veteran's residency in a foreign country), and there is no reasonable possibility of an opinion favorable to the Veteran as to the question of service connection based on aggravation. The Board therefore finds that VA has complied with the May 2007 remand instructions and VA's notification and assistance requirements. ORDER Entitlement to service connection for a low back disability, to include as secondary to a service-connected left knee disability, is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs