Citation Nr: 20052946 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 16-47 814 DATE: August 10, 2020 ORDER Entitlement to service connection for lumbar spine degenerative disc disease (DDD) secondary to service-connected left femur malunion is granted. Entitlement to service connection for a left foot disability to include calcaneal cubid joint osteoarthritis and retrocalcaneal bursitis, and left foot drop, secondary to service-connected left femur malunion and lumbar spine DDD is granted. FINDINGS OF FACT 1. Competent and probative medical evidence shows the Veteran’s current lumbar spine DDD, left foot calcaneal cubid joint osteoarthritis and retrocalcaneal bursitis and are caused by his service-connected left femur malunion. 2. Competent and probative medical evidence shows the Veteran has left foot drop secondary to his now service-connected lumbar spine DDD. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar spine DDD secondary to service-connected left femur malunion have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for a left foot disability to include calcaneal cubid joint osteoarthritis, retrocalcaneal bursitis, and left foot drop secondary to service-connected left femur malunion and lumbar spine DDD have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from May 1972 to December 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript is of record. 1. Entitlement to service connection for lumbar spine DDD secondary to service-connected left femur malunion is granted. 2. Entitlement to service connection for a left foot disability secondary to service-connected left femur malunion and lumbar spine DDD is granted. The Veteran contends that his lumbar spine DDD and left foot osteoarthritis is caused or aggravated by his service-connected left femur malunion condition. See September 2016 VA Form 9. He has submitted medical records from the Florida Spine Institute in support of his appeal. The Board has recharacterized the claim for left foot osteoarthritis as one for service connection for a left foot condition. Clemons v. Shinseki, 23 Vet. App. 1 (2009). This change merely broadens the scope of the claim, and in no way is the Veteran prejudiced by this action. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. An October 2012 VA imaging study and the July 2013 VA examination report show the Veteran has a current diagnosis of lumbar DDD. Medical records from the Florida Spine Institute show diagnoses of left foot osteoarthritis, bursitis, and left foot drop. The question for the Board then, is whether the Veteran has current lumbar spine and/or left foot disabilities that are proximately due to or the result of, or aggravated beyond their natural progress by the service-connected left femur disability. On this question there are opinions in favor of and against the claim. The records received from the Florida Spine Institute contain diagnoses and medical nexus opinions from clinicians at that facility. Clinic notes from Dr. B. dated in November 2012 show the Veteran was diagnosed with thoracic or lumbosacral neuritis or radiculitis, facet syndrome, lumbar myofascial pain, and ankle pain. In a November 2012 opinion, Dr. B. noted that the Veteran had sustained a service-connected injury to the left leg resulting in a permanent deformity, and that he may need future surgery for the foot, and ankle. Dr. B. opined that the mechanics of the [Veteran’s] gait clearly changed and have resulted in a progressive advancement of degenerative disease affecting his lumbar spine and the foot and ankle. Dr. B. added, “I feel that the injuries the Veteran sustained are permanent in nature and are more likely than not to be related to the as a result of his military service injury to the left leg and this includes the lumbar spine and left ankle.” Dr. B. noted that his opinion is based on the examination, review of his medical records and history, October 2012 VA imaging studies, and other private treatment records. Clinic notes from Dr. J. dated in November 2012, show the Veteran was diagnosed with osteoarthritis of ankle and foot, retrocalcaneal bursitis, and leg-length discrepancy. In a November 2012, Dr. J. provided a medical opinion regarding the Veteran’s left foot disability. Dr. J. indicated that she had reviewed the medical records and performed a physical exam and diagnostic testing on the Veteran. She stated the Veteran is having problems with his foot that are directly related to his previous injury when he was in the military. She noted the Veteran has abnormal gait as a result of his leg length discrepancy and the abnormal alignment of his femur. She noted this causes the Veteran to bear increased weight over the lateral aspect of his foot, putting more pressure on the joints in that region. She opined that this gait abnormality is the predominant cause for the osteoarthritis of the calcaneal cuboid joint as well as the retro calcaneal bursitis. The Veteran underwent VA examinations in July 2013. The Veteran was diagnosed with lumbar DDD and left distal femur malunion. He was not diagnosed with a left condition. The Veteran reported that his lumbar spine and left foot conditions started in the last couple of years. In response to the question whether the Veteran’s lumbar spine, left ankle, and left foot conditions are due to his service-connected left femur condition, the examination report contains conflicting opinions. On page 31, the examiner checked a box to indicate that the claimed conditions are at least as likely than not proximately due to or the result of the service-connected [left femur condition]. However, on page 32, the examiner checked a box indicating that the claimed conditions are less likely than not proximately due to or the result of the service-connected [left femur condition]. The rationale for the latter opinion was that ‘the objective findings from the left distal femur issues are not sufficient to explain [the Veteran’s] lumbar DDD and radiculopathy, which is most likely age related and his left ankle and foot objective findings.’ In May 2016, VA requested an addendum opinion as to whether the back and left foot pathology were aggravated by the service-connected left femur condition. The VA examiner from the prior examination opined that the condition claimed is less likely than not proximately due to or the result of the service-connected condition. The examiner noted while there is no doubt the Veteran has a distal femur malunion with significant residuals, he did not think these are causally related to the Veteran’s lumbar DDD or left foot condition, “which are more likely age related.” The examiner noted that the opinions from Dr. B. and Dr. J. had been reviewed, but as he did not document lateral foot overload or malalignment in his original foot exam, he could not agree with Dr. J’s opinion without re-examining the Veteran. The RO subsequently sought another addendum nexus opinion. In September 2016, a new VA examiner opined that it is less likely not that the conditions were aggravated by the left femur condition. This examiner explained that there is neither evidence in the medical literature, consensus in the medical community, nor evidence in this specific case that supports a causal/aggravation relationship between these conditions. This examiner did not indicate whether he reviewed the claims file. He also did not conduct a re-examination of the Veteran or comment specifically on the presence of lateral foot overload or malalignment. In September 2018, the Veteran submitted medical records and a nexus opinion from Dr. C. In a July 2018 neurosurgery report, Dr. C. is noted to have diagnosed the Veteran with intervertebral disc displacement in the lumbar region along with left foot drop. The medical history as provided by the Veteran shows he reported pain in his buttock with difficulty walking two weeks prior which had progressively worsened. Dr. C. reviewed the MRI that the Veteran had recently obtained, and it showed a large herniated disc off to the left at L4-5. Dr. C. provided a diagnosis of drop foot, left foot. In response to the question whether inequality in the leg length has contributed to the Veteran’s lower back problems, Dr. C. opined that he “absolutely agree[s]” and that “were it not for this and the imbalance it has caused his spine particularly in a coronal plane he very likely would not have developed this disc herniation and resultant foot drop which may not improve in spite of successful surgery.” Upon review of the record, the Board finds the competent and probative medical evidence is in favor of secondary service connection. The evidence in favor of a nexus consists of the private medical opinions discussed above. These opinions, which address the Veteran’s gait abnormality due to his service-connected left femur malunion and how this led to his current lumbar spine and left foot disabilities, are probative. They were based on the treating providers’ familiarity with the Veteran’s clinical history, medical records, and were supported with cogent rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In contrast, the Board finds that the VA medical opinions are not as probative. Barr v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The July 2013 VA examination report contains internally inconsistent nexus opinions as demonstrated above. While the May 2016 VA opinion appeared to be adequate, the opinion was somewhat incomplete as the examiner specified that he would need to re-examine the Veteran to confirm the presence of lateral foot overload or malalignment before addressing Dr. J.’s opinion. The September 2016 VA addendum opinion was meant to resolve that question but as indicated, it was not based on an in-person re-inspection of the Veteran, and the examiner did not specifically address whether lateral foot overload or malalignment was present and whether it had was related to the service-connected left femur condition. For these reasons, it is not adequate for adjudication purposes. As the remaining competent and probative medical evidence is in favor of a causal nexus between the Veteran’s current lumbar spine DDD, left foot calcaneal cubid joint osteoarthritis and retrocalcaneal bursitis and his service-connected left femur malunion, service connection on a secondary basis is warranted. As the probative medical evidence is also in favor of a causal nexus between the Veteran’s now service-connected lumbar spine DDD and his left foot drop, service connection for left foot drop is also warranted. The appeal for secondary service connection is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; 3.310. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jake Choi 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.