Citation Nr: 1728186 Decision Date: 07/19/17 Archive Date: 07/27/17 DOCKET NO. 05-38 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected residuals of left great toe injury to include hallux limitus with degenerative joint disease (left great toe disability). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Churchwell, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In September 2007, the Veteran testified at a hearing before the Board. A transcript is of record. In February 2017, the Veteran was notified that the Veterans Law Judge (VLJ) who conducted his personal hearing had retired. The Veteran was offered another hearing, however, he did not respond to the notice. As such, the Board will proceed with adjudication assuming the Veteran did not want another hearing. This matter was previously reopened and remanded by the Board in September 2011 for additional development. Thereafter, the Board remanded the claim again in November 2012 for additional development. Additionally, the Board remanded the issues of entitlement to an increased disability rating for service-connected posttraumatic stress disorder (PTSD) and entitlement to an earlier effective date for the grant of a total rating based on individual unemployability (TDIU) for the issuance of a statement of the case (SOC) following a March 2011 Notice of Disagreement. See Manlincon v. West, 12 Vet. App. 238 (1999). In September 2013, the RO resolved the earlier effective date claim by issuing a rating decision that awarded an earlier effective date for the grant of TDIU. An SOC was issued in December 2014 to address the claim for an increased disability rating for PTSD. The Veteran did not perfect an appeal as to that issue; therefore, it is not before the Board for adjudication. FINDING OF FACT A lumbar spine disability was not manifested in service or in the first post service year, and the preponderance of the evidence is against a finding that the Veteran's current lumbar spine disability is related to his service, or was caused or aggravated by his service-connected left great toe disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected left great toe disability have not been met. U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The duty to notify has been met. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. VA also has a duty to assist a claimant in the development of a claim. That duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). 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). The RO has associated the Veteran's service treatment records and VA treatment records with the claims file. The Veteran was also afforded adequate examinations. The examiners considered the relevant history, provided a detailed description of the condition, and provided an extensive analysis to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). In compliance with the remand directives, the additional records specifically identified in the November 2012 Board remand were requested. The private treatment records sought have been included in the claims file, however, the VA record from January 1970 to January 1992 were requested but not found. A negative reply has been included in the record. Additionally, another VA orthopedic examination was performed in July 2016. There has been substantial compliance with the remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Merits Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). According to the October 2011 VA examiner, the Veteran has diagnoses of status post lumbar laminectomy syndrome and lumbar degenerative disc disease. Additionally, the July 2016 VA examiner diagnosed lumbar spinal stenosis, left lumbar radiculopathy and lumbar disc herniation at L4-L5. The record also reflects a diagnosis of herniated discs at L3-4 and L4-5 in May 2002. These diagnoses satisfy the first prong of the service connection claim, i.e. the existence of a current disability. Regarding the second prong of the service connection claim, in-service injury, the Veteran's service treatment records include a July 1970 complaint of a low back strain from heavy lifting. However, no additional complaints or treatment for the Veteran's low back were noted. Then on the April 1971 Report of Medical Examination for purposes of separation the clinical evaluation of the Veteran's spine was found to be normal. At the September 2007 Board hearing, the Veteran testified that he suffered a foot injury in service that he attributes to the current problems with his back. Specifically, he jumped over a fence and was stabbed in the bottom of the foot by a Coke bottle. Since that injury, he testified he has had problems with his foot, which also led to eventually having surgery on his back. A VA orthopedic examination was performed in March 2007. At that time, the Veteran claimed to have hurt his back in 1970; however, no medical opinion regarding his lumbar spine disability was offered at the examination. An October 2011 VA examiner opined the Veteran's current lumbar spine disability was not related to his military service based on the fact there was no evidence of trauma or severe injuries to his lumbosacral spine when he was in the military. The examiner further stated that the Veteran might have had a sprain type of injury but that would resolve with time and would not cause him to herniate a disc in his back 20 years later. A July 2016 VA examiner also opined that the Veteran's the low back condition was less likely than not incurred in or caused by his service because he was unable to find documented treatment for a low back condition in the service treatment records. Moreover, the examiner explained that a lumbar strain typically resolves over a short period of time so if the Veteran had persistent low back pain in service, there would be more treatment records in the case file. Lastly, the examiner indicated aging and weight had played a significant role in causing the Veteran's current low back pain. While the Board acknowledges the Veteran was treated in July 1970 for a low back strain in service, the reported strain appears to be an isolated injury and not chronic in nature. The Board finds the July 2016 VA examiner's opinion that such a strain would typically resolve over a short period of time, or require additional medical treatment if not resolved, to be probative as it was based on a thorough review of the entire claims file as well as an examination of the Veteran. It is also supported by the October 2011 VA examiner's medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (explaining that "most of the probative value of a medical opinion comes from its reasoning" and that "[n]either a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions"). Giving the July 2016 VA examiner's opinion probative weight, a review of the claims file fails to show that the Veteran had a chronic disability of the low back in service or within one year of service discharge. There is also no competent evidence establishing a diagnosis of osteoarthritis of the back until many years following service. The Veteran does not necessarily argue the contrary. See September 2007 Board hearing testimony. As such, service connection for a lumbar spine disability based on the theories of direct onset (38 C.F.R. § 3.303(a)) or presumptively (38 C.F.R. §§ 3.307, 3.309) is not established. The crux of the Veteran's argument for service connection is essentially that his current lumbar disability is caused or aggravated by his service-connected left great toe disability. In fact, the Veteran reported to the October 2011 VA examiner that his altered gait injured his back. However, the October 2011 VA examiner noted the Veteran had a work-related injury in 2000 to his back followed by lumbar spine surgery. Following the surgery, he reported having back pain daily, worse with sitting, standing, bending, and lifting heavy objects. Regarding the Veteran's contention that his lumbar spine disability is secondary to his left great toe disability, the October 2011 VA examiner opined that an altered gait from the Veteran's great toe would not cause him to have a herniated disc 20 years later. Instead, the examiner indicated that the Veteran's current conditions of the lumbosacral spine were related to his lumbar spine surgery which happened in 2001. Further, the July 2016 examiner found it was less likely than not that the left great toe disability caused or aggravated his lumbar spine disability. In support of that opinion, the examiner stated he did not see a significant gait abnormality in the examination which would have caused or aggravated a lumbar spine disability. The Board acknowledges that during a December 2004 VA podiatry examination, completed in conjunction with the Veteran's then-pending claim related to the left great toe, it was found that he had significant hyperpronatory changes on gait examination. However, the Board finds the fact that subsequent VA examiners found there was no significant gait abnormality to be highly probative evidence. Consideration has also been given to the arguments made by the Veteran. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, an opinion as to the etiology and onset of a lumbar spine disability, 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). Orthopedic disorders are not the types of conditions that are readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that diagnostic testing and other specific findings are needed to properly assess and diagnose the disorders. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that the Veteran is competent to report symptoms such as low back pain, there is no indication that he is competent to etiologically link his orthopedic disorder to his service or his service-connected left great toe disability. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating orthopedic disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Alternatively, the VA examiners reviewed the claims file, took a history from the Veteran, including his contentions regarding the etiology of the condition and personally examined the Veteran. Based on their medical training and experience, the examiners found that the Veteran's lumbar spine disability was less likely than not caused or aggravated by his service-connected left great toe disability and provided sound rationales based on medical research. Thus, the Veteran's statements, to the extent that they are to be accorded some probative value, are far outweighed by the more thoroughly explained and detailed opinions from the VA medical professional. For these reasons, the Board finds that the preponderance of the evidence is against the claim for service connection for a lumbar spine disability, to include as secondary to a service-connected left great toe disability, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). (CONTINUED ON THE NEXT PAGE) ORDER Service connection for a lumbar spine disability, to include as secondary to service-connected residuals of left great toe injury to include hallux limitus with degenerative joint disease is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs