Citation Nr: 1800338 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 17-20 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a balance issue. REPRESENTATION Veteran represented by: Collin A. Douglas, Agent ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1959 to December 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. A medical nexus between an in-service incurrence and a current back disability has not been established, and the Veteran's back disability did not manifest within one year of separation of service; and continuity of symptomology since separation of service have not been met; and his back disability is not proximately due to or aggravated by a previously service-connected disability including pes planus has not been established. 2. The Veteran's claimed balanced issues are not a separate disability, but rather it is a symptoms of the Veteran's previously service-connected pes planus and ankle disorders. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for balance issues have not been met. 38 U.S.C. §§ 1101, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 4.14 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, 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). Service treatment records, VA treatment records, and private treatment records have been obtained. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners had a full and accurate knowledge of the Veteran's disability and contentions, and grounded their opinions in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. Service Connection The Veteran contends that he is entitled to service connection for multiple claimed disabilities. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection can also be established through application of statutory presumptions, including for chronic diseases like organic diseases of the nervous system, that become manifest to a compensable degree within one year of separation of service. 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for chronic conditions that have manifested continuous symptomology since separation of service. Id. Finally, service connection may be granted on a secondary basis for conditions that were proximately due to or aggravated by a previously service-connected disability. 38 C.F.R. § 3.310. Back At issue is whether the Veteran is entitled to service connection for a back disability. The weight of the evidence indicates that the Veteran is not entitled to service connection. The Veteran's treatment records are silent for reports of or treatment for a back problem. During his separation examination, the Veteran's spine was evaluated as normal. In a survey of medical history provided contemporaneously with the Veteran's survey separation examination, the Veteran denied having or ever having had arthritis, and his survey was silent for reports of back problems. In August 2011, the Veteran submitted medical literature suggesting that there was a connection between pes planus, for which the Veteran had already been granted service connection, and low back pain and knee pain. The Veteran underwent a VA examination in April 2012. The examiner opined that the Veteran's knee pain was at least as likely as not caused by the Veteran's pes planus, but the examiner also opined that the Veteran's other sites of osteoarthritis were not the result of the Veteran's pes planus but was rather mild age-appropriate degenerative osteoarthritis. An October 2013 medical opinion from a VA specialist indicated that the Veteran's knee condition was at least as likely as not aggravated by the Veteran's pes planus, and the VA specialist indicated that the reasoning of the April 2012 VA examination, because the occurrence of arthritis in multiple sites need not have a common etiology even if manifesting simultaneously. The VA specialist also noted that the Veteran's medical literature was credible. Treatment records from August 2014 to present indicate that the Veteran manifested back symptoms including pain. The Veteran underwent a VA examination in November 2015. The examiner opined that it is less likely than not that the Veteran's back disability was proximately due to or the result of the Veteran's pes planus, because the Veteran's back conditions were more likely related to the ongoing process of aging. The weight of the evidence indicates that the Veteran is not entitled to service connection for a back condition. The Veteran's service treatment records are silent for reports of or treatment for a back condition, and the Veteran's spine was evaluated as normal upon separation of service. The earliest manifestation of a back condition does not appear decades until after separation from service, and the record does not contain a positive medical opinion suggesting that the Veteran's current back condition was related to a period of service. Therefore, the Veteran's back condition is unrelated to a period of service, did not manifest within one year of separation of service, and did not manifest continuous symptomology since separation of service. The Board notes that the Veteran has submitted medical literature suggesting that pes planus, a condition which the Veteran has already been assigned service-connection for, is linked to back pain and knee problems. The Board also notes that in October 2013 a VA specialist indicated that the medical literature submitted by the Veteran is credible, and that the Veteran's knee pain was aggravated by the Veteran's pes planus. Nevertheless, the October 2013 VA opinion stopped short of opining that the Veteran's pes planus was causing problems to the Veteran's back. Moreover, a November 2015 VA examination indicated that the veteran's back conditions were related to aging rather than his previously service-connected pes planus. Here, the weight of the probative evidence of record simply fails to demonstrate a medical link between the issue on appeal and the Veteran's period of active service; of which there is also no record of a diagnosis within one year of separation or continuity of symptomology since separation from service. Additionally, the evidence of record does not establish that the Veteran's back disorder was proximately due to or aggravated by a previously service-connected disability such as pes planus. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for a back disorder is denied. Balance Issues At issue is whether the Veteran is entitled to service connection for balance issues. The Veteran filed a claim for service connection for balance issues in August 2015, and, in December 2015, the RO denied the Veteran's claim. In his February 2016 notice of disagreement appealing the denial, the Veteran clarified that his balance issues were due to his previously service-connected ankle problems and pes planus, because these conditions result in balance problems. As such, the Board finds that the Veteran's balance problems are symptoms for his previously granted ankle disorders and pes planus. The existence of a current disability or a disability during the pendency of the appeal is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328 (1997). Additionally, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. As such, the Veteran's claim for service connection for balance issues is denied. ORDER Service connection for a back disorder is denied. Service connection for balance issues is denied. ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs