Citation Nr: 20021952 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 18-19 866 DATE: March 30, 2020 ORDER Entitlement to service connection for a low back disorder is granted. FINDINGS OF FACT 1. In a June 2005 decision, VA denied service connection for a low back disorder; the evidence received since June 2005 is new and material. 2. The evidence is in equipoise regarding a relationship between a current low back disorder and the Veteran’s service-connected lower extremity disabilities. CONCLUSION OF LAW The criteria for reopening of, and entitlement to, service connection for a low back disorder have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served active duty in the Army from April 1968 to April 1970. This appeal comes to the Board of Veterans Appeals (the Board) from a June 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2010, the Board remanded this claim for issuance of a Statement of the Case. The Veteran subsequently perfected his appeal. Service Connection—Law and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). 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 such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2018). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for a low back disorder. The Veteran has a current low back disorder, diagnosed as degenerative arthritis and disc disease. The Veteran contends that a current low back disorder is related to his multiple service-connected lower extremity disabilities. The Board initially finds that reopening of the prior June 2005 rating decision on the basis of new and material evidence is appropriate. The Veteran has submitted medical evidence in favor of service connection on a secondary basis. The Board has developed several medical opinions, most of which are ambivalent regarding the proposed relationship. For the reasons next addressed, the Board finds that the evidence on this question is in equipoise. The Veteran submitted a private opinion in February 2017, dated December 13, 2016. His private orthopedist opined “it is difficult to definitely relate his lower back complaints to his [ankle] injury but I would say it is more likely than not related to his altered gait which is in and of itself related to the injury.” The Veteran submitted an opinion from his chiropractor in February 2017. The opinion states “It is my opinion that [the Veteran’s] lower back condition is contributed to the fact that the biomechanics of the foot and ankle on the right is abnormal for many years. The added stress and strain of the gait cycle played a role in altering the mechanics of the pelvic and lower back, which in my opinion led to derangement of the spine.” An August 2017 VA examiner opined “Anytime there's an injury to a joint such as your ankle problems can occur in the joint above or below that injury. The force of the injury through the ankle can also put a twisting load on the joint just below the knee. This is the tibio-fibular joint, the place where the two bones of the lower leg (tibia and fibula) meet.” Clarification was sought regarding the back. The examiner noted that the Veteran had multiple comorbidities in the lower extremities that could result in an antalgic gait and affect the spine. The examiner stated that, “It is difficult to assess which of these conditions have caused the abnormal gait in this claimant.” Additional clarification was obtained on February 16, 2018, at which time the examiner indicated the spine condition was less likely than not caused or aggravated by the service-connected ankle and knee conditions. The examiner stated that, “it’s unlikely for knees and ankle disease to cause or aggravate back disease, as ankle and knee disease will limit activities and walking and that will rest the back not worsen it.” Finally, a September 2019 VA medical opinion was against the secondary service connection theory. The rationale was that review of literature does not support a link between degenerative arthritis of the knees and the diagnosed back disorders. After a review of all of the evidence, the Board finds that the evidence does not strongly favor either outcome in this case. Clearly, there is medical opinion evidence that favors service connection on the basis of secondary causation or aggravation of the low back disorders and gait disturbance due to the Veteran’s multiple lower extremity disabilities. There is also evidence against this theory. The Board finds that none of the opinions is superior to the others and concludes that the evidence is in equipoise. With resolution of reasonable doubt in favor of the claim, the Board concludes that service-connected for the diagnosed low back disorder is warranted. As this represents the full benefit sought on appeal, there is no prejudice resulting from any deficiency in the duties to notify or assist. L. Cramp Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Hawkins 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.