Citation Nr: 1806180 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-14 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a low back disorder, to include as due to his service-connected status post comminuted fracture, right femur (hereinafter right femur). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1981 to August 1985 and from May 1986 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The matter was remanded by the Board in January 2015 and May 2017 for additional development and has since returned. FINDING OF FACT The weight of the evidence is against a finding that the Veteran's low back disorder onset in-service, within a year of service, or is otherwise etiologically related to service or his service-connected right femur. CONCLUSION OF LAW The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 1111, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duty to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Pursuant to the May 2017 Board remand, the AOJ issued a November 2017 Supplemental Statement of the Case (SSOC) after conducting the requested development. The Veteran, through his representative, contends that the AOJ did not properly readjudicate his claim in the aforementioned SSOC because it included language about new and material evidence when the claim was already reopened by the Board in January 2015. See January 2018 Informal Hearing Presentation. While such language was included, apparently in error, upon review it is clear that the AOJ adjudicated the service connection claim on the merits. Thus, the Board finds substantial compliance with its remand instructions, or that any deficiency was harmless error. See Stegall v. West, 11 Vet. App. 268, 271(1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Neither the Veteran nor his representative has raised any additional issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Service connection Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). Certain diseases, such as arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Low back disorder The Veteran asserts service connection for a low back condition as directly related to service or as secondary to his service-connected right femur condition. Specifically, the Veteran asserts that back pain began in January 1992 from being propelled off a flight deck by jet exhaust and has continued since. Alternatively, he asserts his service-connected right femur arising out of the same incident caused or aggravated his low back condition due to an altered gait. The Veteran has a current diagnosis of a low back disorder, including a chronic lumbar strain and arthritis. See June 2005 and April 2015 VA examination. a. Presumptive and direct service connection Upon review of all of the lay and medical evidence, the Board finds that the preponderance of the evidence is against a causal relationship between the current back disorder and active service. The Veteran's service records establish the existence of an in-service event, as they document a January 1992 flight deck accident where he injured his right femur. However, the records are absent any diagnosis of a low back condition, either at the time of his 1992 flight deck accident or otherwise. The only documented complaint of low back pain is from May 1991 and was associated with a viral syndrome. Significantly, the December 1992 exit examination reflects a normal spine on clinical evaluation and the Veteran denied any recurrent back pain on the associated report of medical history. As such, service treatment records do not contain treatment or diagnoses of a back disorder. Social Security Administration records reflect that the Veteran has been in receipt of disability benefits since January 2005 for a primary diagnosis of disorders of the back and a secondary diagnosis of affective or mood disorders. Since discharge, the Veteran worked until January 2005 in physical-type employment positions. He reported a history in lawn maintenance, window installation, as a laborer, mechanical repairman, industrial truck driver and delivery driver. The Veteran has not reported any specific work-related injury but prior to stopping work as a delivery driver in January 2005, he felt a pop in his back with increased pain while at work. Initially, he reported hearing a pop as he bent down to pick something small up and later detailed it occurred while lifting a box out of his work truck. See VA records dated January 7, 2018 and April 2015 VA examination; see also buddy statement dated March 10, 2011 (popped back while doing activity with minimal exertion). VA records from 2003 reflect the first documented evidence of any low back pain, approximately 10 years post service. In records from 2003 to 2005, the Veteran reported a 1991 flight deck injury to his back with pain and that he had been doing heavy or excessive lifting with work activities. See VA treatment records dated January 24, 2004; March 7, 2005. The passage of approximately 10 years between discharge from active service and the lack of medical documentation of claimed disabilities, while not conclusive, is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In an October 2008 VA treatment entry, the physician indicated that the Veteran's old L-1 compression fracture, shown in a January 2006 imaging study, was "likely" from the same carrier accident that injured the Veteran's femur. There was no explanation or rationale to support the statement. Accordingly, the Board finds that the statement without any explanation is entitled to low probative weight, as it is without a rationale. In contrast, the April 2015 VA examiner provided a negative nexus opinion between the Veteran's low back condition and service, including his reported in-service flight deck injury. The examiner provided a detailed summary of pertinent evidence, including lay statements, the Veteran's work history and relevant diagnostic testing. There was no in-service diagnosis of a low back condition. VA records of initial treatment from 2003 reflect reports from the Veteran that his low back pain onset in mid-2002. Although the Veteran reported no specific work-related injuries, he reported that he had occasionally taken off work due to low back pain, perhaps once per month. As noted above, the Veteran reported a January 2005 pop in his low back and did not return to work since. The examiner rationalized that despite the Veteran's complaints of low back pain since his in-service femur fracture, there was no documentation of this and the Veteran was able to work in various capacities for many years following service discharge. Additionally, the examiner found the Veteran's January 2005 episode of increased back pain weighs against a finding of a link, even though he had already been previously seen several years prior for low back pain by VA. The Board affords the April 2015 negative nexus opinion the greatest probative weight as it was based on a thorough review of the Veteran's medical records, evaluation of the Veteran, and cites to relevant medical principles. The Board has considered the lay statements of the Veteran and his pastor which assert that active duty service caused his low back condition. The Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, a relationship between a low back condition and an in-service injury is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d at 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Additionally, the Board finds that the Veteran's competent statements regarding continuity of low back pain are outweighed by the clinical evidence of record. In this regard, the 1992 exit examination found a normal clinical evaluation of the Veteran's spine and the Veteran specifically denied any recurrent back pain on his associated report of medical history. Statements made many years after the fact are of diminished probative value when viewed against the discharge examination findings. Arthritis was not diagnosed until over 10 years post-service, as detailed above. The post-service medical records do not reflect any continuity of symptomatology, medical treatment, or other manner of perception of pain or pathology of the low back condition in the years proximately following service. Thus, the Board is unable to attribute the Veteran's reports of post-service low back pain to arthritis and continuity of symptomatology is not shown. Presumptive service connection is not warranted for the Veteran's arthritis as the condition was not diagnosed in-service or within one year post-service in 1993. b. Secondary service connection Upon review of all of the lay and medical evidence, the Board finds that a preponderance of the evidence is against a causal relationship between the current back disorder and the service-connected right femur, including assertions of an altered gait. As noted above, the Veteran incurred a femur fracture the time of his January 1992 flight deck injury which was surgically repaired at the time and one month later due to broken hardware. Prior to the Veteran's initial documented complaints of low back pain in 2003, the medical evidence of record reflects no complaints of an altered gait or difficulty with ambulation due to the Veteran's right femur, despite notations of a 1 and 2 centimeter leg length discrepancy. See VA hip examinations dated August 1998 and June 2000. Upon initial VA examination of the Veteran's low back in July 2005, the Veteran ambulated without difficulty and had no gait abnormality. On measurement, the Veteran's legs appeared to be the same length. The examiner concluded that it was less likely than not that the Veteran's back condition was the result of his right femur fracture because his right femur fracture was well-healed and there was no resulting leg length discrepancy. The VA examiner also highlighted the Veteran's work history, noted that the Veteran had been out of service for 10 years and speculated that the Veteran's work history was a possible cause of his low back condition, though he could not relate the two without resorting to mere speculation. The Board affords the negative nexus opinion probative weight as it was based on a thorough review of the Veteran's medical records, evaluation of the Veteran, and cites to relevant medical principles. Although the VA examiner was unable to provide an opinion regarding a likely etiology of the Veteran's low back condition, he clearly opined the Veteran's low back condition was not etiologically related to his right femur condition. In an October 2009 letter, the Veteran's physician, Dr. D.H., stated that it was at least as likely as not that the Veteran's residuals of his right femur fracture had caused or aggravated his low back condition. However, the Board finds the opinion is entitled to low probative weight, as it is without a rationale. More recent private records from January 2014 document a self-reported history from the Veteran of altered gait mechanics and a shorter right leg. Of note, the physician commented that the Veteran had lower pelvic landmarks on the right compared to the left. See private records dated June 1, 2015. In light of the conflicting evidence, the January 2015 Board remand requested an additional VA examination and etiological medical opinion. On VA examination in April 2015, the VA examiner opined that it was not at all likely that the Veteran's right femur condition caused or aggravated his low back condition. The VA examiner rationalized that the Veteran did not have an altered mechanical gait or a functional leg length discrepancy due to his right femur condition. The Veteran's gait was noted always to be slow and deliberate but no specific limp had been identified. The Veteran's history revealed a subjective finding of functional impairment based on his symptoms and functional loss. When standing barefoot, the Veteran's pelvis was perfectly level which indicated an even leg length. The examiner stated that it is quite unlikely that the Veteran would lose 1 cm of leg length from 1998 to 2000 and more likely it suggests variance in examiners observations. Additionally, prior X-rays of the femur showed a complete healing of a midshaft fracture of the femur with an intramedullary nail being removed and anatomic alignment to the femur with no overriding of the femur being noted, hence no shortening. The examiner detailed that the Veteran had been seen by many medical professionals including those from neurology, neurosurgery, orthopedics, rheumatology and pain management, none of whom can describe any specific etiology to the Veteran's low back pain. The Veteran did not have lumbar radiculopathy, as shown on examination and in former June 2005 diagnostic testing. VA orthopedic physicians felt the Veteran's right hip was not the source of the Veteran's low back pain after his April 2010 right hip surgery. Neurology thought the Veteran's low back condition was muscular in November 2010. Upon a rheumatoid consultation in June 2011, the Veteran was felt to have chronic pain syndrome. The examiner summarized pertinent imaging studies, including that a July 2011 bone scan showed minimal trace or uptake about multiple joints with no change since the December 2009 bone scan. In June 2011, the sacroiliac joints were normal. In March 2012, there were no abnormalities seen in the lower lumbar spine with only mild spondylitic changes at L1-L2. He detailed that the location of the low back pain is in the mid-lumbar area. X-rays were repeated and reflected extensive calcification of the abdominal aorta. There was moderate disc space narrowing at L1-L2 with anterior spur formation at L1-L2 but disc spaces at L5-S1, L4-L5 and L2-L3 were all within normal limits. There was normal alignment and the sacroiliac joints were intact. There was no evidence of degenerative disc disease in the hip joints. The Veteran was diagnosed with a chronic lumbar strain and healed right femur fracture. The Board affords the April 2015 VA medical opinion the greatest probative weight as the opinion reflects a comprehensive and reasoned review of the entire evidentiary record. The examiner reviewed the claims folder, including lay assertions and medical evidence, interviewed and evaluated the Veteran before rendering the medical opinions. The VA examiner considered the severity and functional impairment of the service-connected right femur disability. The VA examiner also considered the current low back condition and the etiology for this disability. The VA examiner cited to the facts that support the opinions. As such, the Board finds the VA medical opinion has the great probative weight. The Board has considered the lay statements of the Veteran and his pastor which assert that his right femur condition caused or aggravated his low back condition. The Board notes that a relationship between a low back condition and right femur disability, including any impact of an altered gait, is outside the realm of common knowledge of a lay person. For the reasons stated above, the weight of the evidence is against finding that a low back condition is warranted on a direct or secondary basis. ORDER Entitlement to service connection for a low back disorder is not warranted. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs