Citation Nr: 1745537 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 15-04 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for a low back disorder, claimed as secondary to service-connected status post left ankle fracture. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and E. G. ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from January 1962 to July 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Baltimore, Maryland. The Veteran appeared and gave testimony at a Central Office hearing before the undersigned Veterans Law Judge in November 2016. A transcript of the hearing is of record. In February 2017, the Board remanded this matter for further development. The requested development was performed and complies with the directives of the Board remand. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's current lumbar spine disorders, to include arthritis, were not incurred in service or caused by any in-service event, are not related to active service, did not manifest to a compensable degree in the year following separation from service, and are not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder are not met. 38 U.S.C.A. §§ 1101, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 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. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a). If present, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board observes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised regulation, the rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310 (b) (2016). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance in the 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. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran has indicated that it his belief that his current low back problems are caused or aggravated by his service-connected left ankle disorder. A review of the Veteran's service treatment records reveals no complaints or findings of back problems. There were also no complaints of low back problems in the years immediately following service and there has been no indication from the Veteran that his current back problems had their onset in service or that his current lumbar spine arthritis had its onset in service or in the one year following service. The Veteran also testified at his November 2016 hearing that his back condition did not start in service. Because the record does not show continuous symptoms of low back problems since service, degenerative joint disease manifested to a compensable degree within one year of service separation, or arthritis otherwise related to service, direct and presumptive service connection for a low back disorder may not be established. 38 C.F.R. §§ 3.303, 3.307, 3.309. In conjunction with his claim, the Veteran was afforded a VA examination in October 2012. At the time of the examination, the Veteran was diagnosed with degenerative disc disease, scoliosis, and spinal stenosis. The examiner, following examination, rendered an opinion that it was not likely that the Veteran's current back condition was related to his service-connected left ankle condition. The examiner noted that the Veteran had documented degenerative disc disease, scoliosis, and spinal stenosis, that were in no way connected to the left ankle injury. At his November 2016 hearing, the Veteran testified that his back began to hurt as a result of his altered gait from his ankle condition. He indicated that no doctor or physical therapist had made a connection between his ankle and his back. He then stated that his physical therapist has verbally told him they were connected but it was not in writing. The record was left open for thirty days for the Veteran to submit additional evidence. In February 2017, the Board remanded this matter for additional development, to include obtaining a VA examination as to the relationship between any current back disorder and the Veteran's service-connected left ankle disorder and to obtain any additional treatment records from two specified sources. Treatment records obtained in conjunction with the remand make no reference to any relationship between the Veteran's low back disorder and his service-connected left ankle disorder. The requested VA examination was performed in April 2017. At that time, diagnoses of degenerative arthritis of the spine, ankylosing spondylitis, spondylosis, and spondylolisthesis, were rendered. Following examination, the examiner indicated that the Veteran's current lumbar spine disorders were less likely caused by the Veteran's service-connected left ankle fracture residuals. He stated that the condition was not related. He noted that although the Veteran sustained an ankle injury while in service, there was no documentation elucidating that there had been continuity in care or that there had been a correlation between the two conditions. He stated that there was no plausible connection from the ankle to the lumbar spine condition. He further indicated that currently there was no data or evidence corroborating the ankle condition to the lumbar spine disorder, therefore a nexus was not established. With regard to the question of aggravation, the examiner indicated that the condition was not related. He noted that although the Veteran sustained an ankle injury while in service, there was no documentation elucidating that there had been continuity in care or that there had been a correlation between the two conditions. He stated that the current severity of the service-connected ankle condition was not sufficient to impact the nonservice-connected back condition by reasonable medical anatomic separation. He indicated that there was no data or evidence corroborating the ankle condition to the lumbar spine disorder, therefore a nexus was not established. In his September 2017 written argument, the Veteran's representative cited to several medical treatises to support the claim of a secondary service connection. The representative cited to Patient Centered Collaborative Care (Ignatavicius, Donna D. and Workman, M. Linda. (2010, p 1145) Medical - Surgical Nursing: Patient Centered Collaborative Care 6th ed. St. Louis: Elsevier) which stated that posture includes a person's body build and alignment when standing and walking. The curvature of the spine and the length, shape and symmetry of extremities is typically assessed. Muscle size is inspected for symmetry because patients with musculoskeletal problems eventually have problems with gait. He noted that they addressed two phases of (normal, automatic) gait: stance phase and the swing phase. He indicated that Ignatavicius and Workman further stated that an individual's balance, steadiness and ease and length of stride are evaluated; any limp or other asymmetric leg movement of deformity is noted. It further noted that that any abnormality in the stance phase of gait is called antalgic gait. When part of one leg is painful the patient shortens the stance phase on the affected side. An abnormality in the swing phase is called lurch. This occurs when the muscles in the buttocks and or legs are too weak to allow the person to change weight from one foot to the other. The representative noted that in the Veteran's oral testimony, he inferred that because of his abnormal gait he began to experience back pain with the abnormal gait. The representative stated that according to Ignatavicius and Workman there was supporting documentation that correlated gait problems associated with musculoskeletal injuries of which one was a limp and which was stated to be experienced by the Veteran because of his service-connected ankle. He noted that because there was reputable literature to support musculoskeletal gait issues and the effects on the spine, the most recent VA examination had to be excluded because the opinion was based on an inaccurate premise. The representative requested that a stance and antalgic gait assessment be performed, to include balance, steadiness and ease and length of stride, so that the Board had the needed pertinent evidence for a fair and impartial determination. With regard to the Veteran's belief as to a relationship between his current low back disorders and his service-connected left ankle disorder, the Board finds that the etiology of any low back disorder, to include arthritis, falls outside the realm of common knowledge of a layperson and the Veteran is, thus, not competent to provide evidence on the issue of causation. See Jandreau, 492 F.3d 1372, 1377 n.4. Consequently, the Veteran's opinion that purports to establish a relationship between any service-connected left ankle disorder and any current low back disorder is of no probative value. Next, service connection may be granted when the evidence establishes a medical nexus between a claimed disability and a service-connected disability. When evaluating the weight of medical evidence, the Board is guided by the principle that the probative value of a medical opinion largely rests upon the extent to which such opinion is based upon a thorough evaluation of the Veteran's medical history, including but not limited to the medical evidence contained in the record. See, e.g. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board may examine the factual foundation of a medical opinion, including whether the physician had access to relevant information of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In the current case, the Veteran has not submitted competent or probative medical evidence specifically indicating that any current low back disorder is related to his service-connected ankle disorder. The Board does note that the Veteran's representative made reference to several articles which he claimed demonstrated a relationship between his low back disorders and his service-connected ankle disorder. As to the medical articles/treatises submitted, treatise evidence must discuss generic relationships with a degree of certainty such that under the facts of this particular case there is at least a plausible causality based on objective facts rather than on unsubstantiated lay opinion. See, e.g., Wallin v. West, 11 Vet. App. 509, 514 (1998); Timberlake v. Gober, 14 Vet. App. 122, 130 (2000) (citing Hensley v. West, 212 F.3d 1255, 1265 (Fed. Cir. 2000)). The articles/medical treatises submitted are general in nature as opposed to specifically addressing the Veteran's case and are of little probative value. In contrast, the Board has obtained an adequate and probative VA examination opinion in conjunction with the Veteran's claim. The April 2017 VA examiner's opinion indicated that the Veteran's low back disorders were not caused or aggravated by his service-connected left ankle disorder. The Veteran's entire record, which at the time included his service treatment records, private and VA treatment records, and statements and testimony from the Veteran, was reviewed. Based on all of the evidence, the examiner rendered an opinion that was supported by a detailed and complete rationale. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Thus, the Board finds this opinion to be the most probative evidence of record. As to the representative's request for an additional VA examination, as noted above, the medical treatises submitted did not specifically demonstrate a relationship between the Veteran's current low back disorder and his left ankle disorder. Moreover, the examiner reviewed the Veteran's statements and testimony as to an altered gait, as part of the record, when rendering his opinions. The opinions provided the requested information and contained complete detailed rationale to support them. Given the foregoing, an additional VA examination is not warranted. As such, the claim for service connection for a low back disorder on a direct, presumptive, and secondary basis must be denied. As the weight of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disorder, claimed as secondary to service-connected status post left ankle fracture, is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs