Citation Nr: 1619859	
Decision Date: 05/16/16    Archive Date: 05/27/16

DOCKET NO.  10-26 803	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for a back disability, to include as secondary to service-connected bilateral pes planus and bilateral hallux valgus with hammertoe.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Elwood, Counsel

INTRODUCTION

The Veteran had a period of active duty for training (ACDUTRA) with the Marine Corps Reserve from August to November 1985.

This matter initially came before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  In that decision, the RO denied entitlement to service connection for a lumbar spine disability.

The Veteran testified before the undersigned at an October 2012 hearing at the RO (Travel Board hearing).  A transcript of the hearing has been associated with the file.

In March 2013 and October 2015, the Board remanded this matter for further development.


FINDING OF FACT

Degenerative disc disease of the lumbosacral spine did not have its clinical onset in service, is not otherwise related to service, and was not caused or aggravated by a service-connected disability.


CONCLUSION OF LAW

Degenerative disc disease of the lumbosacral spine was not incurred or aggravated in service and was not caused or aggravated by a service-connected disability.  38 U.S.C.A. §§ 101(2), (24), 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.6(a), 3.303, 3.309(a), 3.310 (2015).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014) redefined VA's duty to assist the appellant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015).

Under the VCAA, 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) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held 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).

In a pre-adjudication letter dated in November 2008, the RO notified the Veteran of the evidence needed to substantiate his claim of service connection for a back disability on both a direct and secondary basis.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The claimant's Veteran status has been substantiated.  He was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the November 2008 letter.  

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his 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 his 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).  

The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2015) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).  Here, the Board finds that, pursuant to Bryant, there has been substantial compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the October 2012 hearing was legally sufficient.

At the Veteran's October 2012 hearing, the undersigned identified the issue on appeal and solicited testimony from the Veteran as to the symptoms and history of his claimed back disability and why it was believed that service connection was warranted for the disability.  The undersigned also informed him of the evidence necessary to substantiate a claim of service connection.  Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained.  Id. at 497.  The undersigned also specifically asked the Veteran about the treatment received for his claimed disability to ensure that all relevant records were obtained. Following the hearing, the claim was remanded for further development (to include efforts to obtain additional relevant treatment records and examinations to obtain opinions as to the etiology of the claimed back disability) and the Veteran has submitted additional relevant evidence during the claim period.  He has thereby demonstrated actual knowledge of the ability to identify and submit additional relevant evidence.  Under these circumstances, nothing gave rise to the possibility that any existing, relevant evidence had been overlooked and the duties imposed by Bryant were thereby met.

VA obtained the Veteran's service treatment records and some of the identified relevant post-service private medical records.  The Veteran has not reported, and the evidence does not otherwise reflect, that he has received any relevant post-service VA medical treatment for a back disability.  In addition, the Veteran was afforded VA examinations to assess the nature and etiology of his claimed back disability and opinions have been obtained concerning the etiology of the disability.

In its March 2013 and October 2015 remands, the Board instructed the AOJ to, among other things, ask the Veteran to identify the locations and names of any private medical facilities where he has received treatment for back and foot disabilities; ask the Veteran to complete authorizations so as to allow VA to obtain relevant treatment records from Charlottesville Orthopedic and Sports Medicine, Seminole Total Health, Dr. Coppolla, and any other identified private treatment provider; attempt to obtain any relevant private treatment records for which a sufficient release was received; and afford the Veteran VA examinations to obtain opinions as to nature and etiology of his claimed back disability.

The Veteran was afforded VA examinations in May 2013 and November 2015 and opinions were obtained concerning the etiology of his claimed back disability. These examinations were thorough, contained all pertinent findings, and responded to the inquiries posed by the Board.  

Moreover, the AOJ sent letters to the Veteran in April 2013 and October 2015 and asked him to complete authorization forms so as to allow VA to obtain all relevant treatment records from Charlottesville Orthopedic and Sports Medicine, Seminole Total Health, Dr. Coppolla, and any other private treatment provider.  Copies of the release form (VA Form 21-4142) were included with the letters.  The Veteran submitted additional treatment records in response to the April 2013 letter, but did not submit any signed and completed authorization form so as to allow VA to obtain any private treatment records.  He did not respond to the October 2015 letter. VA is only required to seek pertinent records that are adequately identified and for which necessary releases are furnished.  38 U.S.C.A. § 5103A(b); See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street); 38 C.F.R. §§ 3.159(c)(1)(i), (c)(2)(i) (requiring a claimant to cooperate fully with VA's efforts to obtain federal and non-federal records).  As the Veteran did not complete the appropriate release forms to allow VA to obtain treatment records from Charlottesville Orthopedic and Sports Medicine, Seminole Total Health, Dr. Coppolla, or any other private treatment provider, VA has no further duty to attempt to obtain any additional private treatment records.

Thus, with respect to the claim of service connection for a back disability, the AOJ substantially complied with all of the Board's March 2013 and October 2015 remand instructions.  VA has no further duty to attempt to obtain any additional records, conduct additional examinations, or obtain additional opinions with respect to the claim decided herein.  See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

Analysis

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.

The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.  38 U.S.C.A. § 101(2), (24); 38 C.F.R. § 3.6(a).  In other words, service connection is available for diseases or injuries incurred in or aggravated by ACDUTRA and injuries incurred in or aggravated by INACDUTRA (including an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) (including arthritis) is through a demonstration of continuity of symptomatology.  See Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a).

In relevant part, 38 U.S.C.A. § 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

Service connection may also be granted for a disease first 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).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Initially, the Board notes that the Veteran's only service includes a period of ACDUTRA.  The Court has held that a claimant whose claim is based solely on a period of ACDUTRA or INACDUTRA can never be entitled to a "presumption of service connection."  See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010).  Such a presumption is not possible in such circumstances because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service.  With regard to a claimant whose claim is based solely on a period of ACDUTRA or INACDUTRA, however, there must be some evidence that the condition was incurred or aggravated during the relevant period of service.  Id.

Hence, presumptive service connection for the Veteran's current back disability is not warranted under any circumstance (to include under the provisions pertaining to chronic diseases, such as arthritis).  Id.  Rather, in order for service connection to be warranted, there must be direct evidence that the current back disability was incurred or aggravated during his period of ACDUTRA or that it was caused or aggravated by a service-connected disability.

In the present case, the November 2015 VA examination report includes a diagnosis of degenerative disc disease of the thoracolumbar spine.  Thus, a current back disability has been demonstrated.
The Veteran does not contend, and the evidence does not otherwise reflect, that his current back disability is directly related to service.  Rather, he contends that the current back disability is related to his service-connected bilateral pes planus and bilateral hallux valgus with hammertoe.  Specifically, he claims that he began to experience back pain in the late 1980s and that these symptoms occurred before he started to carry mail for the Postal Service in 1990.

The Veteran is competent to report the symptoms and history of his claimed back disability, including the fact that back pain had its onset in the late 1980s.  However, his reports must be weighed against the objective evidence and their credibility must be assessed.  See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336.

The Veteran has not reported, and the evidence does not otherwise indicate, a continuity of back symptomatology in the years since service.  There is no evidence of any complaints of or treatment for back problems in his service treatment records and a June 1986 "RAD" examination was normal other than for a birthmark.  At the time of the examination the Veteran denied any medical problems or the use of any medications.  

The objective evidence otherwise indicates that the Veteran's current back disability did not manifest until after service.  The earliest post-service clinical evidence of a back disability are examination reports from J.W. Walker, D.C. dated in May 2005 which reveal that there was lumbar paraspinal spasm, some limited motion, and subluxation complex at L4-5.  There is no clinical evidence of any earlier back problems following service.  The Board acknowledges that there is lay evidence of earlier symptoms following service in that the Veteran has reported that back pain began in the late 1980s.  As explained below, however, the Board finds that the Veteran's reports concerning the history of his claimed back disability (including any reports of back pain having its onset in the late 1980s) are not credible.

The absence of any clinical evidence of back problems for nearly two decades after the Veteran's brief period of ACDUTRA in November 1985 weighs against a finding that his current back disability was present during service or in the year or years immediately after that period of service.

The Veteran has provided inconsistent statements as to the onset of his back symptoms.  For example, he has reported on various occasions that back pain began in the late 1980s prior to the time that he began carrying mail for the Postal Service in 1990.  However, a January 2007 patient questionnaire from Charlottesville Pain Management Center indicates that he reported that he had only been experiencing back pain for 2 years.  This timeframe is consistent with the fact that the earliest post-service clinical evidence of a back disability is not until May 2005.

In light of the absence of any clinical evidence of back symptoms until May 2005 and the Veteran's inconsistent statements concerning the onset of his back symptoms, the Board concludes that his reports concerning the history of his back disability, including any reports that back pain had its onset in the late 1980s, are not credible.  

The probative medical opinions of record indicate that no relationship exists between the Veteran's current back disability and service or his service-connected bilateral foot disability.

In an October 2008 letter, C.J. Lander, M.D. reported that he had been asked by the Veteran whether his flat feet were contributing to his recurrent lumbar pain.  Dr. Lander stated, "Although I can not state unequivocally that there is a causative role, I believe it is likely that this is an aggravating factor in his back pain."  There was no further explanation or rationale provided for this opinion.

The nurse practitioner who conducted a September 2009 VA examination opined that it was not likely ("less likely as not"/"less than 50/50 probability") that the Veteran's current back disability was primarily caused by his flat feet.  She reasoned that there was objective evidence of degenerative disc disease of the spine.  The Veteran was working for the post office and had been employed at that job for years as a letter carrier.  He walked at work and carried letters in a satchel slung across his back, so not only was he on his feet for hours walking each day, but he also carried an additional load in the form of his postal satchel full of mail.  A review of medical literature revealed that a population-based, prospective study in England found that jobs involving lifting, pulling, or pushing objects of at least 25 pounds, and jobs involving prolonged periods of standing or walking, were associated with a higher incidence of low back pain.  The medical literature reveals many resources that discuss the effects of foot biomechanics on low back pain, but no evidence could be found in the literature to say that flat feet causes degenerative disc disease of the lumbar spine.  The primary cause of the Veteran's back pain (accounting for more than 50 percent) was actually his degenerative disc disease of the spine.  Thus, while it was believed that his flat foot disability did contribute to his back pain, it was not the primary cause of the back pain.

The nurse practitioner who conducted the May 2013 VA examination opined that the Veteran's current back disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service.  Specifically, it did not likely ("less likely than not") have its clinical onset during the Veteran's period of ACDUTRA and was not otherwise the result of a disease or injury during that period.  She reasoned that the Veteran did not complain of low back pain until 1989.  He exited service in 1985 and was diagnosed with degenerative disc disease of the lumbosacral spine with left lower extremity radiculopathy in 2006 (17 years after exiting ACDUTRA).

The May 2013 examiner also opined that the Veteran's back disability was not likely ("less likely as not"/"less than 50 percent probability") proximately due to or the result of his service-connected foot disability.  She was unable to determine a baseline level of severity of the Veteran's back disability based upon medical evidence prior to aggravation or the earliest medical evidence following aggravation by the service-connected bilateral foot disability because medical evidence was not sufficient to support a determination of a baseline level of severity.  Nevertheless, regardless of an established baseline, the Veteran's current back disability was likely ("at least as likely as not") aggravated beyond its natural progression by his service-connected disability.  With regard to these opinions, the examiner explained that an MRI conducted in December 2006 showed bulging discs at L1-2, L3-4, L4-5, and L5-S1 with disc dessication at L3-4, L4-5, and L5-S1.  There was involvement of the exiting left L-5 nerve root and mild central stenosis at L3-4.  The Veteran was evaluated at the Charlottesville Pain Management Center and received trigger points and ligament injections and intralaminar epidural steroid injections to the back over a period of time since 2007.  The examiner also noted the opinion of the September 2009 examiner and Dr. Lander's October 2008 opinion.

The physician who conducted the November 2015 VA examination opined that regardless of an established baseline, the Veteran's current back disability was not likely (not "at least as likely as not") aggravated beyond its natural progression by his service-connected bilateral foot disability.  The examiner reasoned that the only back disability diagnosed since the Veteran's November 2008 claim is degenerative disc disease of the lumbar spine.  The Veteran had multiple back diagnoses prior to that time, including lumbar herniated nucleus pulposis, lumbar disc protrusion, lumbar myofascial pain, lumbar radiculopathy, and lumbar stenosis.  These disabilities appeared to have resolved with conservative treatment of his low back disability as demonstrated by his history and the November 2015 examination.  The Veteran did not injure his back while on active duty and he attributed his foot disability to wear and tear of military life and the boots worn during his time in service.  There is no evidence in medical literature that bilateral pes planus/hallux valgus/hammer toe leads to or worsens degenerative disc disease.  Also, there was no documentation that the Veteran's back pain worsened beyond the natural progression.  In fact, after a thorough review of the records and the Veteran's reports during the November 2015 examination, it appeared that his back pain had improved clinically with time as he learned to manage it and avoid exacerbations, despite an occupation during the previous 25 years where he was constantly walking and lifting heavy loads as a letter carrier.

The examiner also reasoned that the Veteran had reported that he was told by Dr. Lander only to return for further injections if his back pain was significantly exacerbated to the 9 or 10 level on a 10 point scale.  He reported that his back pain had not reached that level in the previous several years because he avoided activities that exacerbate his pain.  He was able to work on a very strenuous job involving a lot of walking and lifting.  This indicated that he had learned to manage his low back pain well and that this resulted in what appeared to be an improvement of his back disability clinically during the previous few years.  The primary diagnosis present since 2008 was degenerative disc disease and the other diagnoses appeared to have resolved without residuals with conservative treatment, which was not unusual.

Moreover, the examiner noted Dr. Lander's October 2008 opinion and indicated that he could not support this opinion because it was not based on fact or supporting documentation and the examiner believed that is very difficult for a treating physician to make an opinion asked for by a patient when the physician knows that they will probably see the patient again.  The examiner also disagreed with the opinion of the May 2013 examiner that the Veteran's low back pain was aggravated beyond its natural progression because this opinion was not based on fact or documentation.  The November 2015 examiner did agree with the opinion of the September 2009 examiner who cited the population based study in England which found that occupations involving the same type of activity performed by the Veteran in this case were associated with a higher incidence of low back pain.  The Veteran reported that he began to experience low back pain in the late 1980s, but he did not start seeing chiropractors or other practitioners until the early 1990s.  He did not experience any back injury while on active duty or within one year of active duty.  Rather, he seemed to have worked at jobs involving physical labor most of his life.  Therefore, it was not unusual that he would develop back pain in the late 1980s that may have been the result of an occupational exposure outside of his military experience.

Dr. Lander's October 2008 opinion is of little probative value.  He indicates that flat feet are an "aggravating factor" in the back pain, but does not implicate flat feet as the cause of any underlying back disability or specify any permanent increase in back pathology attributable to the service-connected flat feet.  The opinion is not accompanied by any explanation or rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304  (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

The May 2013 opinions that the Veteran's current back disability was not caused by his service-connected bilateral foot disability, but that it was aggravated beyond its natural progression by the service-connected disability, are also of limited probative value because the rationale that accompanies these opinions does not specifically provide information in support of the opinions.  Although the examiner noted the opinion of the September 2009 examiner and Dr. Lander's October 2008 opinion, the remainder of the rationale is only a recitation of December 2006 MRI findings and a statement that the Veteran was receiving treatment at the Charlottesville Pain Management Center.  The examiner did not otherwise explain why these facts supported her opinions.

Nevertheless, even if the Board were to find that the May 2013 opinion that the Veteran's current back disability was aggravated beyond its natural progression by his service-connected foot disability was highly probative, service connection on the basis of aggravation by a service-connected disability would not be warranted based on this opinion alone.  VA regulations specify that VA will not concede that a non service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the non service-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the non service-connected disease or injury.  38 C.F.R. § 3.310(b).  The May 2013 examiner specifically indicated that she was unable to determine a baseline level of severity of the Veteran's back disability based upon medical evidence prior to aggravation or the earliest medical evidence following aggravation by the service-connected bilateral foot disability because medical evidence was not sufficient to support a determination of a baseline level of severity.  Hence, regardless of the probative value of the May 2013 aggravation opinion, service connection due to aggravation by a service-connected disability based solely on the May 2013 opinion is not warranted.

The September 2009 opinion, the May 2013 opinion that the current back disability is not directly related to service, and the November 2015 opinion do not explicitly acknowledge or discuss the Veteran's contention that he began to experience back pain prior to the time that he began to carry mail for the Postal Service (i.e., that back pain began in the late 1980s, but that he did not begin to carry mail until 1990).  As explained above, however, the Veteran's reports as to the onset of his back symptoms are not deemed to be credible and an opinion based on such an inaccurate history would be inadequate.  See Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).

The September 2009 opinion, May 2013 opinion pertaining to direct service connection, and the November 2015 opinion are otherwise based upon examinations of the Veteran and a review of his medical records and reported history and they accompanied by specific rationales that are not inconsistent with the evidence of record.  The November 2015 opinion directly references Dr. Lander's October 2008 opinion and the May 2013 aggravation opinion and addresses why these opinions are incorrect.  Thus, the September 2009 opinion, May 2013 direct service connection opinion, and November 2015 opinion are adequate and entitled to substantial probative weight.  See Nieves-Rodriguez, 22 Vet. App. at 304.
   
The Veteran has expressed his belief that his current back disability is related to his service-connected bilateral foot disability.  Lay evidence may be competent on a variety of matters concerning the nature and cause of disability.  Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  The general tenet that foot problems may lead to other structural problems elsewhere in the anatomy is a plausible theory and, therefore, the Veteran's testimony that his current back disability is related to his service-connected flat feet has some tendency to make a nexus more likely than it would be without such an assertion.  However, once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention.  Not all competent evidence is of equal value.  The Board finds the opinion by the 2015 VA medical examiner more probative than the Veteran's statements.  The examiner is a medical professional and was able to review the overall record, including the Veteran's history and opinions.  

There is no other evidence of a relationship between the Veteran current back disability and service or a service-connected disability, and neither he nor his representative has alluded to the existence of any such evidence.  Also, as discussed above, the record fails to demonstrate any evidence of a continuity of symptomatology.  Thus, the preponderance of the evidence is against a finding that the Veteran current back disability is related to service, manifested in service, or was caused or aggravated by a service-connected disability.

For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim.  The benefit-of-the-doubt doctrine is therefore not helpful in this instance, and the claim of service connection for a back disability must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57.


ORDER

Entitlement to service connection for a back disability is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs