Citation Nr: 1746986 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 98-13 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for arthritis of the back and legs, to include as secondary to service-connected right ankle disability. REPRESENTATION Veteran represented by: Colin E. Kemmerly, Attorney ATTORNEY FOR THE BOARD C. Smith, Associate Counsel INTRODUCTION The Veteran served honorably on active duty from August 1974 to July 1975. This case comes to be Board of Veterans' Appeals (Board) on appeal from an April 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Jurisdiction of the case has since been transferred to the RO in Montgomery, Alabama. In May 2007, the Board denied service connection for arthritis of the back and legs. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court) In a May 2009 Memorandum Decision, the Court remanded the Board's May 2007 decision as it pertained to the issue of arthritis of the back and legs. This case was then remanded by the Board in December 2011 and November 2014. In February 2017, the Board requested a specialist's advisory medical opinion on the etiology of the Veteran's claimed arthritis of the back and legs per VHA Directive 1602. The requested opinion was provided in July 2017, and the matter is again before Board for adjudication. FINDING OF FACT The Veteran's stenosis of the lumbar spine with radiculopathy is etiologically related to the Veteran's altered gait mechanics as a result of the service-connected right ankle disability. CONCLUSION OF LAW The criteria for service connection for lumbar spine stenosis with radiculopathy, claimed as arthritis of the back and legs, are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2016). In light of the Board's favorable decision, however, any deficiencies in VA's duties to notify and assist the Veteran with her claim decided herein are moot. Service Connection The Veteran contends that her back and leg disorders are caused or aggravated by her service-connected right ankle disability. She specifically asserts that in 1996, her right ankle disability caused her to fall when she was leaving work and that the fall caused chronic back and leg disorders. 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, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). 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) (2016). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence of the record; every item of evidence does not have the same probative value. When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A May 1996 private orthopedic record from curative rehabilitation services documented the Veteran had low back pain that been exacerbated by the Veteran's altered foot mechanics. A July 2006 private treatment record from Dr. JV reported the Veteran had a history of back pain since a September 1996 fall at work. The impression was lumbar spondylosis with some foraminal stenosis. The Veteran underwent a VA examination in March 2014. The examiner noted diagnoses of stenosis with radiculopathy, and reported the Veteran's back and leg pain began in September 1996 after a work accident. The examiner opined that the stenosis with radiculopathy was more likely related to a direct overuse of the respective areas rather than a complication or consequence of the right ankle disability. July 2014 VA radiographic imaging showed degenerative changes in the lower lumbar spine resulting in mild canal narrowing at the L3-L4 and L4-L5 level. At a November 2014 VA physical therapy consultation, the Veteran reported that her right lower extremity was shorter than the left due to a history of right ankle injury 20 years prior. She reported ongoing lower back pain and right lower extremity weakness and giving way. The assessment was right lower extremity leg length discrepancy and right lower extremity weakness. In a February 2015 VA addendum opinion, the 2014 examiner noted a July 2006 medical record that indicated back pain began in September 1996 due to a work accident, and reiterated her findings that the Veteran's radiculopathy diagnosis explained the symptoms in her legs and lumbar spine. The examiner opined that further review of VBMS did not support a claim of a chronic back disorder resulting from active military service, noting that the Veteran's June 1975 service discharge examination was negative for recurrent back pain or problems. While the examiner acknowledged that the Veteran's stenosis with radiculopathy was a result of an undisputed 1996 fall, the examiner failed to address the relevant question of what caused the fall. The Board thus sought an expert medical opinion. As a result, in July 2017 an orthopedic surgeon reviewed the Veteran's claims file and opined that it was at least as likely as not that the 1996 fall was caused by the service-connected right ankle disability. The examiner explained that the Veteran had altered ankle biomechanics from the ankle disability that altered balance and gait, which was the likely cause of the fall. Based on the foregoing, entitlement to service connection for lumbar stenosis with radiculopathy is warranted. The only adequate medical opinion of record attributes the Veteran's currently diagnosed lumbar stenosis with radiculopathy to her 1996 fall that was caused by her service-connected right ankle disability. Thus, the most probative evidence demonstrates that the Veteran's lumbar spine stenosis with radiculopathy is secondary to the service-connected ankle disability and service connection on a secondary basis is warranted. See 38 C.F.R. § 3.310. ORDER Entitlement to service connection for lumbar spine stenosis with radiculopathy is granted. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs