Citation Nr: 1805376 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 09-00 695 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a left ankle disability, to include as due to a low back disability. REPRESENTATION Appellant represented by: Andrew L. Wener, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and W.H. ATTORNEY FOR THE BOARD J.Lee, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1972 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2010, the Veteran testified at a Videoconference hearing before the undersigned. A transcript of the hearing is associated with the record. In July 2010, June 2014, and July 2016, the Board remanded this matter for additional development, which has been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. A preexisting low back injury was noted on the Veteran's entrance examination in March 1972. 2. The preexisting low back disorder did not permanently increase in severity during service. 3. Whether the Veteran's left ankle disability is secondary to his low back disability is moot as service connection has not been established for a low back disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2017). 2. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1153, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303, 3.307, 3.309, 20.1304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Low back disability The Veteran seeks service connection for a low back disability. The Veteran contends that he injured his low back due to his training exercises, as well as the duties required of his military service occupation as a boatswain's mate, which required bending and lifting. See March 2010 Hearing Testimony, p. 4. The Veteran has a current diagnosis of lumbar spine degenerative disc disease (DDD). See July 2010 VA examination. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran's service treatment records (STRs) include his March 1972 enlistment examination, which showed that he reported having recurrent back pain. The remaining STRs note that the Veteran sought treatment for complaints of back pain, and all treating physicians deemed his back normal upon examination. In July 1972, the Veteran had x-rays taken of his lower lumbar, thoracic vertebrae after he reported low back pain following an auto accident from two years prior. The radiologist found no significant abnormalities. Another July 1972 report notes that the Veteran stated he was experiencing low back pain because he had injured his back while playing football two years prior. In October 1972, an orthopedist stated that the Veteran's back was "absolutely unremarkable," noted that there were no muscle spasms or sciatica, and that his impression was a normal back. The Veteran's post-service medical records, both private and from VA medical centers, are silent on the etiology of the Veteran's low back disability. In July 2010, June 2011, July 2011, and August 2014, the Veteran was afforded VA examinations or an addendum opinion was asked for. As noted in the Board's July 2010, June 2014, and July 2016 remands, these examinations were inadequate for purposes of deciding this claim. In April 2017, in response to the Board's July 2016 remand, the Veteran was afforded another VA examination for his lower back. The VA examiner noted the diagnosis of lumbar spine DDD. He noted abnormal range of motion (ROM) in the Veteran's forward flexion (zero to 50 degrees); extension (zero to 10 degrees); right and left lateral rotation (zero to 20 degrees for both); and normal ROM for right and left lateral flexion. The abnormal ROM resulted in functional loss as the Veteran had trouble bending. Although the VA examiner noted pain on examination, he stated that it did not result in or cause functional loss. In an April 2017 lumbar x-ray, the VA examiner noted that there was disc space height loss at L3-4, L4-5, and L5-S1. The VA examiner also discussed a lumbar MRI from May 2013 where there was an incidental note of degenerative marrow signal intensity affecting the anterior inferior endplate and margin of the L4 vertebra. There was no objective evidence of pain on non-weight bearing; ankylosis; no radiculopathy; and no intervertebral disc syndrome (IVDS). The VA examiner opined that the Veteran's low back disability was less likely than not incurred in or caused by the claimed-in service injury, event, or illness because there was a 1972 record of low back pain, but no follow-up or complaints of it, including during his separation examination. Therefore, he opined that the Veteran's low back pain was due to his lumbar spine DDD. In regards to aggravation, the VA examiner opined that, again, as there was no follow-up or complaints of low back pain during service, including on the discharge examination, after the 1972 record of low back pain, the Veteran's low back disability clearly and unmistakably existed prior to service, and was thus, less likely than not aggravated beyond its natural progression by service. Based on a review of the evidence, the Board concludes that service connection for a low back disability is not warranted. Although the Veteran currently has a diagnosis of lumbar spine DDD, the evidence fails to show that the condition is in any way related to his military service. The Board finds that the presumption of soundness has been rebutted with regards to the Veteran's low back pain. The opinion of the April 2017 VA examiner shows that the Veteran's low back disability clearly and unmistakably pre-existed service. As the examiner's opinion was formed after interviewing and examining the Veteran, as well as reviewing the evidence, the Board accords it great probative value. The Board notes that the VA examiner's rationale is fully supported by a reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, the examiner's opinion is supported by the Veteran's STRs and post-service medical records. As noted above, the Veteran's recurrent low back pain was recorded at his March 1972 enlistment examination. Therefore, based on the April 2017 VA examiner's opinion, the entrance examination, and the STRs, the Board concludes that clear and unmistakable evidence has been presented to show that the Veteran had a low back disability that pre-existed his military service. The evidence also shows that the Veteran's preexisting low back disability was clearly and unmistakably not worsened beyond its natural progression due to his military service. The April 2017 VA examiner reports note that medical records did not indicate anything that could have aggravated the condition. Again, the Board accords this opinion great probative value as it was formed after interviewing and examining the Veteran and reviewing the medical evidence of record. The evidence shows that the Veteran's disability did not clearly and unmistakably worsen beyond its natural progression. In this case, the evidence fails to show that the preexisting low back disability was aggravated by the Veteran's military service. The Veteran's STRs showed that he sought treatment for low back pain in July and October 1972. No physician was able to find anything remarkable about his back pain, even after he had undergone a back x-ray. In fact, the October 1972 began his opinion with "Gentleman, I wish I could help but the examination is absolutely unremarkable." In light of the Veteran's STRs and then April 2017 opinion, the Board concludes that the Veteran's preexisting low back disability clearly and unmistakably was not aggravated by his military service. The Board acknowledges the Veteran's opinion that his low back disability is etiologically related to his service. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case - the etiology of a low back disability - falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer); see also Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011). As neither the representative, the Veteran nor his brother are shown to have any advanced medical education or training, their assertions as to etiology have no probative value. Based on the evidence, the Board finds that a low back disability clearly and unmistakably pre-existed the Veteran's military service and that it clearly and unmistakably was not permanently worsened beyond normal progression during or as a result of the Veteran's military service. Accordingly, the Board concludes that a low back disability was not incurred or aggravated in service. The benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection is denied. See 38 U.S.C. §5107 (West 2012). II. Ankle The Veteran also has a claim for secondary service connection of a left ankle disability, to include as due to a low back disability. He contends that low back pain has altered his gait, thus causing his left ankle disability. As the Veteran has only claimed his left ankle disability as secondary to his low back disability, the Board finds that the Veteran has limited his claim for service connection for a left ankle disability to entitlement based solely on a theory of secondary service connection. Therefore, the Board need only address that theory of entitlement. See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Where a claimant has raised an issue of service connection, the evidence in the record must be reviewed to determine the scope of that claim. Claims which have no support in the record need not be considered by the Board, however, as the Board is not obligated to consider "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory.). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In the present case, however, as discussed above, service connection has not been established for the Veteran's low back disability. Consequently, the question of whether service connection can be established as secondary to these conditions is moot as there is no service-connected disability upon which service connection can be founded. The Board finds, therefore, that secondary service connection for a left ankle disability must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a left ankle disability, to include as due to a low back disability, is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs