Citation Nr: 1645021 Decision Date: 11/30/16 Archive Date: 12/09/16 DOCKET NO. 07-10 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a back disorder, to include as secondary to a service-connected left ankle condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran & his Wife ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2011, the Veteran and his wife testified before the undersigned Acting Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of the proceeding has been associated with the electronic claims file. The Board denied the claim in December 2012. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In September 2013, pursuant to a Joint Motion of the parties, the Court granted a motion vacating the decision and remanding the case back to the Board for action consistent with the Joint Motion. The Board subsequently remanded the claim for further development in April 2014 and April 2015. FINDING OF FACT A back disorder has not been shown to have been present during active service or until many years thereafter; the most probative evidence is against a finding that the Veteran's back disorder was caused or aggravated by service-connected residuals of a left medial malleolus fracture. CONCLUSION OF LAW The criteria are not met to establish service connection for a back disorder, to include as secondary to his service-connected left ankle condition. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the Veteran of the information and evidence not of record that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria and effective date provisions pertinent to the Veteran's claims. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in November 2007. Neither the Veteran, nor his representative, has alleged error in VA's notice in this appeal. Hence, the duty to notify has been satisfied. Service treatment records and post-service VA and private treatment records have been associated with the claims file. In addition, the Veteran was afforded VA examinations to address the etiology of his back disorder in February 2012 and May 2014 and an addendum opinion was acquired in June 2015. The Board finds that there has been substantial compliance with the April 2014 and April 2015 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). VA's duty to assist has been satisfied. In September 2011, the Veteran was afforded the opportunity to give testimony before an Acting VLJ in which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103 (c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Acting VLJ asked specific questions directed at identifying the criteria for service connection. The Acting VLJ also sought to identify any pertinent evidence not currently associated with the record. The Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. He also presented his treatment history and symptoms since service. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103 (c)(2); and no prejudice has been identified in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the Acting VLJ complied with the duties set forth in 38 C.F.R. § 3.103 (c)(2). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Legal Criteria, Factual Background and Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2015). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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). The Board has reviewed the Veteran's entire record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends his back condition was caused by or is aggravated beyond its natural progression by his service-connected left ankle condition because the ankle condition altered his gait. In an October 2007 correspondence, the Veteran indicated that his left ankle condition caused him to limp when he walked. He described pain in the left leg radiating to the back causing severe pain. A November 2007 magnetic resonance imaging (MRI) of the spine revealed degenerative changes seen at the lower three lumbar segments with narrowing of the central canal to six millimeters at L3-4 and L4-5 with minimal neural foraminal narrowing at the L3-4 level. In May 2008, the Veteran underwent a VA examination and it was indicated the Veteran was using a back brace. At his September 2011 hearing before the Board, the Veteran indicated when he injured his left ankle in service he was putting all the pressure over his right knee and was walking off balance with an altered gait. He indicated that thereafter, he started having back pain. His wife testified that the Veteran's doctor indicated that when the Veteran walked he was putting all the pressure on his right side because of severe pain in the left ankle which led to throwing his back out. In December 2011, the Board remanded the claim for a VA examination and to seek a medical opinion as to whether any diagnosed back disability was at least as likely as not secondarily related to the Veteran's service-connected left ankle disorder, as well as whether the left ankle disorder had chronically aggravated any diagnosed back condition. The examiner was instructed to consider the theory of whether the Veteran had an altered gait due to his left ankle condition which brought on his back problems. The Board also asked the examiner to determine all present symptoms and manifestations attributable to the Veteran's service-connected left medial malleolus. In February 2012, the Veteran underwent examinations of his ankle and his back. The examiner identified a left ankle non-displaced medial malleolus fracture, healed. The Veteran reported pain in his ankle, foot and leg. The examiner noted that it appeared from review of the claims file that much of the Veteran's ankle complaints were actually complaints related to the foot, posterior tibial insufficiency, pes planus, plantar fasciitis and degenerative joint disease. As to the spine, the examiner noted the Veteran had degenerative disc disease with foraminal and canal stenosis. The examiner stated there was nothing in the currently accepted, peer reviewed, credible, and authoritative literature demonstrating that intrinsic conditions of the ankle, including a non-displaced, uncomplicated medial malleolus fracture of an ankle in the remote past, with or without altered gait, would cause intrinsic conditions of the spine. In December 2012, the Board denied the claim. Thereafter, the Veteran's attorney and the Office of General Counsel filed a Joint Motion for Partial Remand (Motion) asking the Court to vacate the portion of the December 2012 decision that denied the claim and remanding it to the Board for further development and readjudication in compliance with the Motion. In the Motion, the parties agreed that the Board did not ensure compliance with the prior December 2011 remand. The parties determined that the February 2012 VA examination opinion addressed causation, but it did not adequately address aggravation. In April 2014, the Board remanded the claim for an addendum medical opinion pursuant to the Motion. In May 2014, the Veteran underwent an additional VA examination. Lumbar degenerative disease with bilateral radiculopathy was diagnosed. The Veteran reported that his back pain started 10 to 15 years prior while working at a warehouse. He could recall no causative injury. It was noted he had bilateral lumbar pain that increased with standing, walking, bending and lifting. He also had pain radiating to the buttocks, thighs and knees. The examiner stated that there were no opinions in medical literature to support the conclusion that lumbar degenerative disease can be caused or aggravated by a remote healed fracture of the ankle with residual osteoarthritis. In addition, he noted that antalgic gait had never been shown medically to cause or aggravate lumbar degenerative disease. The examiner stated that lumbar degenerative joint disease is a result of chronic weight bearing on the lumbar disc mechanism over extended time and not by variations in gait. The examiner opined that the current lumbar degenerative disc disease is no worse than anticipated based on age alone. In April 2015, the Board remanded the claim again finding that the rationale provided by the examiner did not adequately address aggravation, as the opinion did not address the Veteran's contentions regarding how his back disability was worsened by his left ankle disability. The Board noted that in statements in support of claim the Veteran reported that his altered gait from his left ankle disability caused him to throw out his back and that pain from his left ankle went up his leg into his back. In June 2015, the examiner who provided the May 2014 opinion provided an addendum. He opined that the Veteran's left lower extremity radiated symptoms, to include pain and paresthesias, were the result of his lumbar radiculopathy. The examiner stated that localized ankle conditions do not cause retrograde transmission of pain up to the back and that the pain was the result of nerve root irritation by the veteran's lumbar degenerative disease. The examiner repeated again that altered gait had never been shown to aggravate or to cause lumbar degenerative disease. He went on to explain that "throwing out" ones back did not cause lumbar degenerative disease. He noted that the Veteran engaged in manual labor over the 30 years following discharge from service and that normal age-related lumbar degenerative disease is generally found on x-ray imaging by age 40, and progresses thereafter. The examiner concluded that he found no medical evidence that the Veteran's current lumber condition was aggravated beyond its normal progression by his service-connected left ankle injury. The Board finds that the June 2015 addendum opinion provides a reasoned medical opinion based on review of the pertinent records and relevant medical history, and constitutes probative evidence that the Veteran's back disorder was not caused by or chronically aggravated beyond its natural progression by his service-connected left ankle disability. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Chronic aggravation is defined as a permanent worsening of a nonservice-connected disability not otherwise attributable to the natural disease process. Here, it does not appear to the Board that the Veteran's healed left medial malleolus fracture either caused or aggravated a disability in the Veteran's back. Examinations, to include an examination in December 2005 and the examination in February 2012, indicated the pain the Veteran was experiencing was due more to the Veteran's foot disabilities, to include Grade II pes planus, than to his old fracture. Notably, the Veteran is not service-connected for a foot condition. The Board acknowledges that the Veteran is competent to report lay-observable symptoms associated with his back condition, to include pain. In this case, however, the determination of any relationship between the Veteran's lumbar degenerative disease and his left ankle fracture involves complex medical questions upon which the Veteran is not competent to report. See Jandreau, 492 F.3d at 1376-77. The conclusions regarding causation and aggravation require specific, highly specialized, medical knowledge and training regarding the unseen and complex processes of the different body systems, knowledge of various risk factors, and causes or aggravations of lumbar degenerative disease that the Veteran is not shown to possess. Overall, the Board finds that the criteria for service connection have not been met because there is no competent evidence of a nexus between his back condition and service-connected left ankle condition. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim, the benefit-of-the doubt doctrine does not apply, and the claim must be denied. ORDER Entitlement to service connection for a back disorder, to include as secondary to a service-connected left ankle condition is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs