Citation Nr: 20004863 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 15-10 681 DATE: January 22, 2020 ORDER Service connection for a lumbar spine disability, to include as secondary to service-connected disability of the right knee and/or feet, is denied. FINDINGS OF FACT 1. The Veteran’s current lumbar spine disability did not manifest in service and is not otherwise attributable to service; arthritis of the lumbar spine did not manifest to a compensable degree within one year of service discharge. 2. The probative evidence of record does not establish that the Veteran’s current lumbar disability is either proximately due to, or aggravated by, the service-connected disabilities of his right knee and/or feet. CONCLUSION OF LAW The criteria for an award of service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from December 1974 to January 1995. His decorations include the Southwest Asia Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina. This case was previously before the Board in June 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the agency of original jurisdiction (AOJ) furnished the Veteran a supplemental statement of the case relative to the matter herein decided in April 2019. Although additional VA-generated evidence has been added to the record since that time, none of it bears meaningfully on the outcome of the present appeal. As such, there is no need to return the case to the AOJ for consideration of the new evidence or, alternatively, to solicit a waiver of AOJ review from the Veteran. See 38 C.F.R. §§ 19.31, 20.1304(c). In October 2019, the Board mailed the Veteran a letter advising him that his previous Rapid Appeals Modernization Program (RAMP) opt-in had not yet been processed and that the issue on appeal was currently pending at the Board in the old (legacy) review system. The October 2019 letter asked the Veteran if he still wished to participate in RAMP. The letter asked the Veteran to respond within 60 days; otherwise, the Board would assume that he would like his appeal to remain on the Board’s docket in the legacy appeals system. To date, no response has been received. Therefore, his appeal continues to be processed according to legacy procedures. Entitlement to service connection for a lumbar spine disability. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Secondary service connection is warranted where a claimed disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The threshold legal requirements for a successful secondary service connection claim are evidence of: (1) a current disability for which secondary service connection is sought; (2) a disability already service-connected; and (3) competent evidence that the already service connected disability caused or aggravated the disability for which service connection is sought. If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases—including arthritis—to a degree of 10 percent or more during the one-year period following separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran alleges that his lumbar spine disability is related to service, or alternatively is secondary to his service-connected right knee disability and/or service-connected bilateral foot disability. See e.g., February 2014 Notice of Disagreement. Initially, the Board notes that the medical evidence confirms a current diagnosis of degenerative arthritis of the spine. See March 2019 VA examination. Service treatment records include a December 1974 examination report that reflects a normal evaluation upon entrance into service. Subsequent service treatment records reflect that he complained of back pain after falling while playing basketball. He received a diagnosis of muscle strain. See April 1978 service treatment record. A November 1978 re-enlistment examination report reflects a normal clinical evaluation. A November 1982 service treatment record shows complaints of back pain with a diagnosis of acute back strain. On an October 1983 Report of Medical History, the Veteran denied any recurrent back pain or arthritis. When he was examined for re-enlistment in April 1988, he again denied having recurrent back pain or arthritis. Objectively, a clinical evaluation was noted to be normal. Thereafter, in June 1991, the Veteran complained of lower back pain after playing basketball. He was diagnosed with mild back spasm. However, when he was examined for service separation November 1994, he again denied having recurrent back pain or arthritis. Objectively, he had a normal clinical evaluation. The Veteran has undergone multiple VA examinations during the appeal period. However, as noted in the previous June 2018 Board decision, the January 2012 and January 2015 VA examinations have been found inadequate. Therefore, those examination reports will not be considered. Following a VA examination in May 2013, the examiner reviewed the claims file and opined that the Veteran’s lumbar spine condition was less likely as not incurred in or caused by an in-service injury, event, or illness. The examiner provided a diagnosis of degenerative joint disease of the lumbar spine. The rationale provided was that there was no documentation in the in the claims file of recurrent and/or frequent evaluations indicating treatment for this musculoskeletal condition until 2003, eight years after separation from service. The examiner found no verifiable medical documentation of chronicity of this condition post service in the Gulf War region, nor post military discharge, from which to conclude direct service connection, secondary, or aggravated service connection. On March 5, 2019, the Veteran was afforded another VA examination. The examiner reviewed the claims file and opined that it was less likely than not that the Veteran’s current lumbar spine disability was incurred in or caused by an in service injury, event, or illness. The examiner noted that the Veteran was seen four times in service for complaints of back pain; however, the examiner noted the complaints were acute only. The examiner noted that, after June 1991, there was no frequent and/or recurrent documentation of a lower back condition during service. The examiner further noted the Veteran’s November 1994 discharge examination in which he reported no recurrent back pain and was given a normal clinical evaluation. The examiner also opined that the degenerative arthritis of the Veteran’s spine with bilateral lower extremity radiculopathy was not aggravated beyond its natural progression by his service-connected right knee disability or bilateral foot disability, as they are separate disabilities. Another VA opinion was obtained on March 28, 2019. Following review of the claims file, the examiner found it is less likely than not that any current lumbar spine disability was caused or aggravated by the Veteran’s service-connected right knee disability and/or service-connected bilateral foot disability. In the accompanying rationale, the examiner noted that neither of the service-connected disabilities would likely result in significant gait alteration to provide the likelihood of causation of spinal disease. The examiner found significant and long-standing gait alteration is required to introduce the possibility of secondary spinal disease due to lower extremity orthopedic conditions. The examiner further opined that without significant gait alteration, there cannot be the possibility of aggravation due to the Veteran’s service-connected right knee disability and/or service-connected bilateral foot disability. The VA treatment records do not include an etiological statement attributing any currently diagnosed lumbar spine disability to the Veteran’s military service or his service-connected disabilities. After review of the evidentiary record, the Board finds that service connection is not warranted for a lumbar spine disability. In regard to the claim for service connection on a secondary basis as due to service-connected right knee disability and/or service-connected bilateral foot disability, none of the probative evidence supports a finding of a relationship between the Veteran’s claimed lumbar spine disability and his service-connected disabilities. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). As noted, the March 28, 2019 VA examiner stated that there is no evidence of a connection between the service-connected disabilities and the claimed lumbar spine disability in this case. Also, the Board finds that, while the Veteran has a current lumbar spine disability, including degenerative arthritis of the spine, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Board notes that the March 5, 2019 examiner found the in-service complaints to be acute and noted that the Veteran denied recurrent back pain on his November 1994 discharge examination. Moreover, there is no competent and probative evidence that the Veteran’s current lower back disability manifested to a degree of 10 percent or more within one year of separation from service. As such, service connection on a presumptive basis is not warranted. The Board finds the May 2013, March 5, 2019, and March 28, 2019 opinions to be probative. The VA examiners clearly reviewed the medical records in the claims folder and provided opinions that are supported by and consistent with the evidence of record. The only credible, probative opinions of record weigh against the claim on both a direct and secondary basis, and neither the Veteran nor his representative has presented or identified any contrary medical opinion evidence that supports the Veteran’s claim. To the extent that the Veteran has himself asserted that his current lumbar spine disability is related to his active service, to include his service-connected right knee disability and/or service-connected bilateral foot disability, such statements lack probative value, as the Veteran is not shown to possess the medical expertise necessary to render an opinion relating his low back disability to his active service or a service-connected disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In any event, the Board gives more weight to the May 2013, March 5, 2019, and March 28, 2019 VA medical opinions. Because the preponderance of the evidence is against a finding that the Veteran’s lumbar spine disability is etiologically related to his active duty service, the appeal of this issue must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.