Citation Nr: 18149049 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 09-00 459 DATE: November 8, 2018 ORDER Entitlement to service connection for a low back disability, to include as secondary to a service-connected foot disability, is denied. FINDING OF FACT The Veteran’s low back disability did not manifest during service or within one year of separation from service, was not related to her service, and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a low back disability have not all been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1973 to November 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in February 2012 and July 2014. The July 2014 Board decision denied entitlement to service connection for a low back disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claim (Court). In April 2015, the Court granted a Joint Motion for Remand (JMR) on the grounds that the Board failed to provide adequate reasons and bases. The JMR stated that the Board erred when it did not address conflicting VA examiner opinions. This case was again before the Board in November 2015, September 2017, and February 2018. Most recently, the Board remanded the case for a new back examination and a VA examiner opinion regarding direct service connection and secondary service connection, to include whether the Veteran’s back disability was caused or aggravated by her service-connected foot disability. The Veteran was afforded a new VA examination in March 2018. The examiner provided an opinion regarding direct service and whether the Veteran’s back disability was caused or aggravated by her service-connection foot disability. Accordingly, the Board finds that the remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran 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”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disability. See 38 C.F.R. § 3.310(a). Service connection will also be granted on a secondary basis for an additional disability that results from aggravation of a non-service connected disability by a service-connected disability. Entitlement to service connection for a low back disability The Veteran contends that her low back disability was caused or aggravated by her service-connected foot disability. The March 2018 VA examiner found the Veteran has degenerative arthritis of the lumbar spine and intervertebral disc syndrome. As such, the first element for service connection is met. The preponderance of the evidence is against the grant of service connection on a direct or presumptive chronic basis for a low back disability. The Veteran’s service treatment records (STRs) do not show any treatment for, or symptoms of, a low back disability. The Veteran’s October 1975 separation examination did not indicate back abnormalities. The Veteran does not contend that her back condition was related to any in-service event. There is no evidence of record indicating that the Veteran’s low back disability manifested to a compensable degree within one year of discharge from service. Rather, she contends her back disability is secondary to her service-connected foot disability. In addition, the March 2018 VA examiner noted that there are no STRs for any back condition while the Veteran was on active duty, nor are there any medical records within 1-2 years following active duty service. As such, the preponderance of the evidence is against the grant of service connection on a direct or secondary basis. Turing to secondary service connection, the Board finds that the preponderance of the evidence is against finding that the Veteran’s low back disability was caused or aggravated by her service connected foot disability. The Veteran attended VA examinations in September 2007, March 2012, December 2016, November 2017. As determined in the November 2015, September 2017, and February 2018 Board decisions, these examinations are not adequate regarding the question of whether the Veteran’s low back disability was caused or aggravated by her service-connected foot disability. In March 2018, the Veteran was afforded a new examination per the November 2017 remand instructions. The March 2018 examiner found that the Veteran’s back disability was less likely than not proximately due to or the result of the Veteran’s service-connected foot condition, pes planus. The examiner stated that the Veteran’s pes planus caused a minimally antalgic gait, but that it was not substantially abnormal. She found that medical literature showed a link between severe antalgic gait and low back pain, but that back issues showed reversibility once the foot issue was addressed. The Veteran’s last podiatry note indicated she was being treated with orthotics and was doing well. The examiner stated there is no medical evidence to support a nexus between the Veteran’s low back condition and pes planus because the pes planus is adequately corrected and her gait shows minimal abnormality. The examiner also stated that is was not at least as likely as not that the Veteran’s back disability was aggravated beyond its natural progression by her service-connected foot disability. The examiner noted that from 1991 to 2017 the Veteran’s spine x-ray showed slow progression of degenerative changes. Although the Veteran has vocalized worsening, she had not required increased medication, specialized testing, or treatment by a specialist. The examiner noted that the Veteran has a minimally abnormal gait and medical literature finds that the back generally is not affected unless there is a severe gait abnormality. As noted above, the Veteran’s pes planus is being treated with orthotics and has not resulted in significant foot abnormality or gait disturbance. The Veteran’s back disability has progressed mildly over the years with no advanced or aggressive worsening. As such, the examiner found that it was less likely than not that the Veteran’s back disability was aggravated by her service-connected foot disability. The March 2018 VA examiner’s opinion is the most probative evidence of record regarding whether the Veteran’s back disability was caused or aggravated by her service-connected foot disability. The examiner considered the Veteran’s service-connected disability in detail, to include her altered gait, and provided rationale that was well-reasoned and was consistent with the evidence of record The Board also acknowledges the medical literature submitted by the Veteran to support of her claim. These documents contain information regarding how altered gait may affect other parts of the body, including the back. However, generic medical literature, which does not apply medical principles regarding causation or etiology to the facts of an individual case, or facts more or less similar to the individual case, does not provide competent evidence to establish causation. See Sacks v. West, 11 Vet. App. 314 (1998). (Continued on the next page)   The Board has also considered the Veteran’s statements that her current back disability is related to her service-connected foot disability. However, whether the Veteran’s back disability is caused or aggravated by a separate service-connected disability is a complex medical question, and is not within the knowledge of a lay person or determinable by observation with one’s senses. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, the Veteran’s statement is not competent evidence and not probative. The preponderance of the evidence weighs against a grant of service connection for the Veteran’s low back disability on a direct, secondary, or presumptive basis. As such, the claim of entitlement to service connection for a low back disability must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel