Citation Nr: 1757022	
Decision Date: 12/11/17    Archive Date: 12/20/17

DOCKET NO.  13-21 934A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for a low back disability, to include as secondary to service-connected pes planus and plantar fasciitis.  


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.A. Williams, Associate Counsel 

INTRODUCTION

The Veteran served on active duty from April 1988 to April 1992. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision the Department of Veterans Affairs (VA) Regional Office (RO) in Winston- Salem, North Carolina.

In October 2016, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing.  A transcript of the hearing is associated with the claims file.  The undersigned left the record open to allow the Veteran to submit additional evidence and the Veteran waived AOJ consideration of the evidence.  In December 2016, the Veteran submitted additional evidence.  The Board may consider the new evidence in the first instance.  See 38 C.F.R. § 20.1304 (2017).


FINDING OF FACT

The Veteran's low back disability did not have its onset in service, is not proximately due to or aggravated by a service-connected disability, and is not otherwise related to service. 


CONCLUSION OF LAW

The criteria for service connection for a low back disability have not been met.  38 U.S.C. §§ 1110, 1131, 1154(b), 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran asserts that she has a low back disability that had its onset in service or is secondary to her service-connected pes planus and plantar fasciitis.  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. 
§ 3.303.  In order to establish service connection for a disability, the evidence 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.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). 

The evidence shows low back diagnoses of low back strain, radiculopathy, and mechanical back syndrome.  See May 2013 VA Medical Opinion; September 2016 Disability Benefits Questionnaire.  Thus, the issue that remains disputed is whether the Veteran's low back disability had its onset in service, is secondary to a service-connected disability, or is otherwise related to service. 

The Veteran's service treatment records show isolated complaints of low back pain.  In October 1988 the Veteran denied direct trauma but reported exercise trauma and normal function.  The Veteran reported the back pain occurred after picking up emersion heaters.  The Veteran was advised to refrain from heavy lifting for 7 days.  In March 1990 the Veteran complained of back pain lasting for a week.  The Veteran reported the pain was not sports-related.  Service treatment records are silent for continued back treatment and a diagnosis of a back disability.  

The Veteran's post service treatment records also include isolated complaints of low back pain but are silent for any low back diagnosis or continued treatment.  (At the same time, a June 2010 VA treatment note indicates that the Veteran had low back pain for at least 8 years due to uterine myomata.)  

During a February 2011 VA examination the Veteran reported that her low back pain started when she picked up a piece of equipment and pulled her back.  She reported being treated with ibuprofen.  She complained of daily, moderate, low back pain.  On examination, there was no objective evidence of spasm, atrophy, guarding, tenderness, or weakness.  The Veteran had decreased range of motion, but her neurological examination was normal.   

The examiner report that the Veteran showed superficial tenderness demonstrated by the fact that she reported discomfort of the low spine on light palpation.  The examiner stated that physical back pain does not make the skin tender to touch.  Similarly, the Veteran cried due to severe low back pain when the examiner's hand touched the top of her head with light pressure.  The examiner stated that this maneuver does not cause low back pain.  The Veteran also reported severe low back pain in a standing position when the shoulder and pelvis were rotated in unison despite the fact that the structures of the spine are were not stressed in this position.  

The examiner reported that the Veteran's limited range of motion during testing was inconsistent with her casual observed range of motion.  During range of motion testing the Veteran reported severe pain, cried, and became rigid.  The examiner indicated that the Veteran put on effect into the muscle examination and refused to push against resistance but was able to bend all the way over to remover her socks and shoes from a sitting position.  Imaging testing showed a normal spine.  The examiner further stated that there was no diagnosis of lumbar strain due to an unreliable examination.  

The examiner concluded that the Veteran's low back pain was not caused service because the Veteran had no continuity of care since leaving service and that current back pain was most likely due to aging and genetic predisposition.  The examiner further stated that it was mentioned during her 1991 treatment that it was suspected that her back symptoms were exaggerated and the examiner concluded that her current symptoms were exaggerated also.         

In a May 2013 VA medical opinion, the examiner opined that the Veteran's lumbosacral spine strain is less likely as not secondary to or aggravated by the Veteran's service-connected pes planus and plantar fasciitis.  The examiner stated that the lumbosacral spine strain is a diagnosis based solely on the Veteran's reported pain but there was no abnormal pathology found to support an orthopedic diagnosis or a rheumatologically diagnosis and no evidence of a spinal condition associated with bilateral pes planus or bilateral plantar fasciitis.  

The Board finds the examiners' opinions probative to the question at hand.  The examiners possessed the necessary education, training, and expertise to provide the requested opinions.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  The examiners explained the objective evidence used in reaching their conclusions and the conclusions are supported by the record.  

Other evidence addressing the nexus element includes a disability benefits questionnaire (DBQ) completed by private medical service provider R. Marina, Doctor of Chiropractic, stating that he reviewed the Veteran's service treatment records and opined that the Veteran's back conditions of radiculopathy and mechanical back pain syndrome are due to her military duties.  The examiner reasoned, "[The Veteran's] work duties of constantly picking up emersion heaters of 25 pounds each contributed and began her low back pain.  She heard 'a pop' in her low back in 1988 which caused her severe pain in her low back.  This mechanism of bending, lifting, and extending her back with a 25 pound heater is just enough with gravity to begin her low back pain in 1988 up to the present."

The Board has carefully considered this information, but finds the February 2011 and May 2013 VA medical opinions more probative, since they correspond to the known facts and provide detailed explanations of all relevant factors including the absence of continuity or chronicity after service.  Also of note is the fact that Dr. Marina reports that the Veteran's back diagnoses or radiculopathy and mechanical back pain syndrome had their onset in 1988, but does not reconcile that with the Veteran's other post service treatment records that are negative for any back diagnoses for so long.  In addition, imaging studies during the appeal period show a normal spine.  

The Board has considered the Veteran's testimony regarding the onset and cause of her back symptoms.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  However, whether the low back pain the Veteran reportedly experienced in service is in any way related to a current low back disability requires medical expertise to determine.  See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.").  Here, the Veteran is not competent to opine as to the etiology of her low back symptoms because it is a specific medical issue that falls outside the realm of common knowledge of a lay person.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  

Furthermore, the Board notes that the Veteran's statements have been inconsistent.  During the September 2016 private DBQ she reported that when she injured her back in service she "heard a pop."  Service treatment records do not indicate that the Veteran reported "hearing a pop" during treatment for low back pain, she did not mention hearing a pop during her February 2011 VA examination, and the Veteran did not attribute her low back pain to any specific injury in her post service medical records.  Also of note is the fact that the Veteran did not raise her low back claim until November 2010 - over 17 years after separation.  If she had been experiencing continuous symptoms, it is reasonable to expect that she would have filed a claim sooner, given that she filed claims for other disabilities.  Thus, the Veteran's statements regarding continuity of treatment are of little probative value.     

Under the forgoing circumstances, the greater weight of the evidence is against the conclusion that a low back disability was incurred in service.  In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).




ORDER

Entitlement to service connection for a low back disability is denied.   



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals





Department of Veterans Affairs