Citation Nr: 18140689 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 13-03 518A DATE: ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected disability. 2. Entitlement to service connection for a right foot disability, to include as secondary to service-connected disability. ORDER Entitlement to service connection for a low back disability, to include as secondary to service-connected disability, is denied. Entitlement to service connection for a right foot disability, to include as secondary to service-connected disability, is denied. FINDINGS OF FACT 1. A low back disability manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease or to a service-connected disability. 2. A right foot disability manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability, to include as secondary to a service-connected disability, has not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). 2. The criteria for service connection for a right foot disability, to include as secondary to a service-connected disability, has not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from February 1962 to January 1966. This case comes before the Board of Veterans’ Appeals (the Board) from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board remanded the Veteran’s claims in July 2015, February 2017, and October 2017 for further development. The Board finds that there has been substantial compliance with its remand directives, and that matters are now properly before the Board for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Central Office hearing in November 2016. A transcript of the hearing is of record. The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection In general, service connection may be granted for disability or injury incurred in, or aggravated by, active military service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection for a claimed disorder, there must be (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes that it was incurred in active service. See 38 C.F.R. § 3.303 (d) (2016); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A disability can be service-connected on a secondary basis if proximately due to, or the result of, a service-connected condition. See 38 C.F.R. § 3.310 (a) (2016). In order to establish entitlement to service connection on a secondary basis, there must be (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable. 38 C.F.R. § 3.310 (a) (2017); Allen v. Brown, 7 Vet. App. 439, 448 (1995). For certain chronic disorders, to include degenerative joint disease (DJD) and degenerative disc disease (DDD), shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service connected. See 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a) (2018). When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is an alternative means of establishing presumed service connection with respect to one of the listed chronic diseases. Competent medical evidence is required, unless non-expert evidence is competent to identify the existence of the condition. See 38 C.F.R. § 3.303 (b) (2018). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2018). A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Low Back Disability The Veteran has a current diagnosis of DJD of the lumbar spine. Therefore, the first prong of service connection, a current disability, is satisfied. See Hickson v. West, 12 Vet. App. at 253. As for the second prong of service connection, an in-service incurrence or aggravation of a disease or injury, service treatment records indicate treatment for a back strain in 1963. Moreover, the Veteran was involved in a motor vehicle accident in May 1965, during which the Veteran sustained a right femoral shaft fracture with a donor-site scar of his iliac spine. See id. Additionally, regarding service connection on a secondary basis, the Veteran is service-connected for status-post fracture of right femur, DJD of the right knee, achilles tendonitis of the right ankle, scar iliac spine, scar right buttock, and shortening of the right lower extremity. Therefore, given the in-service incurrence and service-connected disabilities, the second prong of service connection on a direct and secondary basis are met. See id.; see Wallin v. West, 11 Vet. App. at 512. Turning to the third prong of service connection on direct and secondary basis, a nexus between the disability and the Veteran’s service, or a nexus between the disability and the Veteran’s service-connected disability, the Board finds that such element of service connection is not met in this case. See id. The Veteran was afforded a VA examination in August 2010. The Veteran reported lower back pains beginning at the age of 35. The VA examiner found straightening of the normal lumbar lordosis and severe disc space narrowing at L5-S1, but found that the lower back degenerative changes were likely due to advancing age and not due to the femur fracture in service. The VA examiner noted that there is no evidence of any pelvic tilt or rotation or scoliosis, which lead the VA examiner to conclude that the lumbosacral spine condition is most likely due to his advancing age and is not related to the fracture of the right femur. The Veteran was afforded an additional VA examination in January 2016. The VA examiner found that the low back disability was less likely than not proximately due to or the result of the Veteran’s service-connected conditions, specifically past femur fracture, right knee disability, or scars to the iliac spine and right buttocks. In support of the examiner’s opinion, the VA examiner noted a leg length variant with a difference measuring 0.2 cm, which the VA examiner noted to be a normal variant. MRI of the lumbar radiograms along with “L-spine x-rays” were noted to have been reviewed, and were found to be age appropriate. Therefore, the VA examiner found that the Veteran’s lower back condition is less likely than not related to his past femur fracture, right knee disability, or scars to the iliac spine and right buttocks. Last, and in relevant part, an addendum opinion was furnished by a VA examiner in December 2017. The VA examiner noted that the Veteran previously reported that his lower back pain began at least 10 years after his motor vehicle accident in 1965, but noted that there is no evidence of treatment for such back pain. Again, the VA examiner reported no evidence of any abnormal gait or limping, and reported a leg length discrepancy that is not clinically significant. Upon discharge from service, the Veteran’s physical does not indicate low back conditions; and therefore, the VA examiner found the June 1963 back strain to be acute and transitory. Moreover, the VA examiner explained that back strains occur in the muscles surrounding the back, but does not directly affect the back bones or discs, and does not cause nor contribute to the development of DJD of the spine. Therefore, the VA examiner concluded that is it less likely than not that the Veteran’s DJD of the lumbar spine was caused by or related to service, to include the Veteran’s June 1963 low back strain and treatment. Additionally, the VA examiner opined that the Veteran’s low back disability was less likely than not caused by, due to, or aggravated by any single service-connected disability or combination. The VA examiner explained that the Veteran’s records do not show chronicity or continuity of care for any back conditions, and that his service-connected conditions have been present for 40 years. Additionally, the VA examiner noted that the Veteran has no gait abnormality, no clinically significant leg length discrepancy, and therefore, it is less likely than not that the Veteran’s lower back disability are caused by or aggravated by his service-connected disability, to include status-post fracture of right femur, DJD of the right knee, achilles tendonitis of the right ankle, scar of the iliac spine, scar of the right buttock, and shortening of the right lower extremity. The Board finds the December 2017 VA addendum opinion to be particularly probative. The VA examiner noted the Veteran’s assertions and medical history, and ultimately provided medical opinions that are well supported by the medical evidence of record and medical knowledge. In this case, the VA examiner’s ultimate opinion is grounded in a review of the pertinent medical history and is supported by an explanation linking the data to the conclusion reached, which enables the Board to make fully informed decisions when considered in conjunction with the evidence of record. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008); Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012)). In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). However, to the extent that the Veteran associates his experiences in service with his current disabilities, the Board notes that the Veteran is not competent to provide a medical etiology for his diagnosed DJD of his low back. The Veteran is a layperson, and lacks the required medical knowledge and training necessary to form an opinion on a relationship between his experiences in service and his current disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). This is not a situation where a direct, observable cause and effect relationship is evident through application of the five senses. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Therefore, the Board attributes the medical evidence of record significant probative weight, and finds that the weight of the evidence is against the Veteran’s claims. Concerning the presumption in favor of chronic diseases and continuity of symptomatology, the preponderance of the evidence is also against a finding that the disability manifested either in-service or within the first post-service year. Id.; 38 C.F.R. §§ 3.303 (b), 3.307; Walker, 708 F.3d 1331. As noted in the medical evidence of record, the Veteran’s DJD of the low back was diagnosed after his first year post service, with the Veteran reporting that his back pain began around the age of 35. Moreover, although service treatment records indicate one incidence of back strain in service in June 1963, the Veteran’s service treatment records, to include examinations upon discharge, are otherwise silent for low back pain, and, as noted above, the December 2017 VA examiner found the June 1963 back strain to be acute and transitory. Additionally, when the fact of chronicity in service is not adequately supported, service connection may be established by a showing of continuity of symptomatology after discharge. See 38 C.F.R. § 3.303 (b) (2018). However, the Veteran’s assertions and the medical evidence of record does not indicate continuity of symptomatology. The Veteran asserts that his back pain began around the age of 35. Furthermore, the medical evidence of record does not include continued complaints and/or treatment of the Veteran’s lower back since service. Accordingly, the Board finds that continuity of symptomatology is not shown. In summary, after considering the medical and lay evidence of record, the Board finds that the preponderance of the probative evidence of record weighs against the Veteran’s claims for service connection of the Veteran’s low back disability. As such, the claim must be denied. 2. Right Foot Disability The Veteran has a current diagnosis of metatarsalgia, hammertoes 2-5, and hallux abducto valgus of the right foot. Therefore, the first prong of service connection, a current disability, is satisfied. See Hickson v. West, 12 Vet. App. at 253. As for the second prong of service connection, an in-service incurrence or aggravation of a disease or injury. Again, the Veteran was involved in a motor vehicle accident in May 1965, during which the Veteran sustained a right femoral shaft fracture. See id. Additionally, regarding service connection on a secondary basis, the Veteran is service-connected for status-post fracture of right femur, DJD of the right knee, achilles tendonitis of the right ankle, scar iliac spine, scar right buttock, and shortening of the right lower extremity. Therefore, given the in-service incurrence and service-connected disabilities, the second prong of service connection on a direct and secondary basis are met. See id.; see Wallin v. West, 11 Vet. App. at 512. Turning to the third prong of service connection on direct and secondary basis, a nexus between the disability and the Veteran’s service, or a nexus between the disability and the Veteran’s service-connected disability, the Board finds that such element of service connection is not met in this case. See id. The Veteran was afforded a VA examination in August 2010. The VA examiner opined that the Veteran’s 7- millimeter leg strength discrepancy between the right and left lower extremities was not a significant deformity, and concluded that the right foot disability was not the result of the femur fracture. The Veteran was afforded an additional VA examination in January 2016. The VA examiner found that the Veteran’s right foot disability was more likely due to a congenital biomechanical condition, but did not indicate what the condition was or whether the Veteran’s service-connected disabilities aggravated the foot condition. In relevant part, the Veteran was furnished a VA addendum opinion in December 2017. The VA examiner stated that the Veteran’s foot conditions were diagnosed in 2013 and in 2016, and noted that the Veteran’s metatarsalgia is bilateral and likely due to a congenital biomechanical condition rather than from injury or deformity. The VA examiner further explained that hammertoes are caused mostly by problems with the foot itself such as high arches or tight shoes, not from injury to other body parts or from other conditions in the body, and hallux vargus is due to flat feet, tight shoes, hammertoes. The December 2017 VA examiner further noted that the Veteran’s right foot diagnoses of metatarsalgia, hammer toes 2-5, and hallux abducto valgus, were all present long after his service-connected conditions started. Additionally, the VA examiner did not find that his right foot disability was aggravated beyond its natural progression by any service-connected disability or disabilities. The VA examiner explained that the Veteran’s records show no chronicity or continuity of care for any foot conditions, that the Veteran has no gait abnormality, and that there are no clinically significant leg length discrepancies. Therefore, the VA examiner concluded that it is less likely than not that the Veteran’s right foot disability was aggravated by any single service-connected disability or combination thereof. The Board finds the December 2017 VA addendum opinion to be particularly probative. The VA examiner noted the Veteran’s assertions and medical history, and ultimately provided medical opinions that are well supported by the medical evidence of record and medical knowledge. In this case, the VA examiner’s ultimate opinion is grounded in a review of the pertinent medical history and is supported by an explanation linking the data to the conclusion reached, which enables the Board to make fully informed decisions when considered in conjunction with the evidence of record. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008); Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012)). In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). However, to the extent that the Veteran associates his experiences in service with his current disabilities, the Board notes that the Veteran is not competent to provide a medical etiology for his diagnosed right foot disability. The Veteran is a layperson, and lacks the required medical knowledge and training necessary to form an opinion on a relationship between his experiences in service and his current disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). This is not a situation where a direct, observable cause and effect relationship is evident through application of the five senses. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Therefore, the Board attributes the medical evidence of record significant probative weight, and finds that the weight of the evidence is against the Veteran’s claims. Concerning the presumption in favor of chronic diseases and continuity of symptomatology, the preponderance of the evidence is also against a finding that the disability manifested either in-service or within the first post-service year. Id.; 38 C.F.R. §§ 3.303 (b), 3.307; Walker, 708 F.3d 1331. As noted in the medical evidence of record, the Veteran’s right foot disability was diagnosed after his first year post service. Moreover, although service treatment records indicate the motor vehicle accident in-service, the Veteran’s service treatment records, to include examinations upon discharge, are otherwise silent for right foot pain. Additionally, when the fact of chronicity in service is not adequately supported, service connection may be established by a showing of continuity of symptomatology after discharge. See 38 C.F.R. § 3.303 (b) (2018). However, the Veteran’s assertions and the medical evidence of record does not indicate continuity of symptomatology. Particularly, the medical evidence of record does not include continued complaints and/or treatment of the Veteran’s right foot pain since service. Accordingly, the Board finds that continuity of symptomatology is not shown. In summary, after considering the medical and lay evidence of record, the Board finds that the preponderance of the probative evidence of record weighs against the Veteran’s claims for service connection of the Veteran’s right foot disability. As such, the claim must be denied. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamie Tunis, Associate Counsel