Citation Nr: 21000116 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 11-17 238 DATE: January 4, 2021 ORDER Service connection for a back disability, including secondary to service-connected left hip trochanteric bursitis, is denied. FINDING OF FACT The weight of the competent and probative evidence is against finding that the Veteran has a current back disability that is proximately due to or aggravated by his service-connected left hip disability or that it is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a back disability due to service or service-connected left hip disability are not met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1997 to March 1999. This case is before the Board of Veterans Appeals (Board) on appeal from December 2009 and December 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at videoconference Board hearing in November 2012. In October 2016, the Veteran and his representative were notified via letter that the Veterans Law Judge who had conducted the previous hearing had since retired, and were given the opportunity to request a new hearing. Neither the Veteran nor his representative responded to that notice. In a March 2017 decision, the Board denied the claim of service connection for a back disability. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC). In a November 2018 Order, the CAVC granted a Joint Motion for Remand (JMR), vacated the Board’s March 2017 decision, and remanded for further development. The Board remanded this case for further development in October 2019 and August 2020. As the requested development has been completed, no additional action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The August 2020 Board decision also remanded the matters of entitlement to service connection for a psychiatric disability as well as entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. In an October 2020 rating decision, the RO granted service connection for depressive disorder and assigned a 70 percent rating from March 23, 2009 as well as entitlement to a TDIU, effective from March 23, 2009. These matters have accordingly been resolved. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997). 1. Entitlement to service connection for a back disability. For the reasons set forth below, the Board finds that the criteria for service connection for a back disability are not met. Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation while in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or worsened beyond its natural progression (aggravated) by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc); 38 C.F.R. § 3.310. Veterans are competent to report symptoms and experiences they can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. In this matter, the Veteran contends that his back disability is proximately caused by his service-connected left hip disability, trochanteric bursitis. He has alternatively asserted that his back disability began during his military service. 11/27/2012, Hearing Testimony. The Veteran’s service treatment records (STRs) documented complaints of back pain in February and March 1998. His January 1999 separation examination and report of medical history did not identify any back-related issues; significantly, the Veteran’s spine and other musculoskeletal were clinically evaluated as normal and recurrent back pain was explicitly denied. See 02/18/2005, STR–Medical. A January 2005 examination of the Veteran’s hips and x-rays noted a transitional lumbar vertebra. See 01/11/2005, VA Examination. A September 2007 private treatment note notes lower back pain and states the Veteran was in an accident in 2001. See 03/31/2011, Medical Treatment Record (MTR)–Non-Government Facility (NGF). The Veteran’s private chiropractor, G.S., D.S. provided a letter in May 2008 stating the Veteran has a history of lower back pain and left hip pain due to a military service injury. G.S. further stated, that due to the chronicity of his left hip problems, the Veteran will continue to have acute exacerbations of lower back and hip pain. See 10/19/2009, MTR–NGF. VA Medical Center treatment notes from 2010 indicate the insidious onset of the Veteran’s low back pain was in 2007. See 03/09/2011, MTR–Government Facility (GF); 04/07/2010, CAPRI. In November 2010, a VA examiner, M., PA-C, opined that trochanteric bursitis is independent of any back condition, does not aggravate any back condition, and transitional lumbar vertebra is a congenital anomaly. See 11/10/2010, VA Examination. A June 2014 VA examiner opined that the Veteran’s claimed low back condition is not at least as likely as not proximately due or secondarily aggravated by his service-connected left hip disability. The examiner explained trochanteric bursitis is in the lateral hip soft tissues and would not likely directly affect weight-bearing in the hip joint. He also noted no known credible medical authority or peer-reviewed study has demonstrated a causal link between trochanteric bursitis and lumbar degenerative disc disease. See 06/19/2014, C&P Exam. The Veteran provided a subjective history of his back disability in a March 2018 private physical therapy session. He stated that his pain began in 1997 while in the military; he was training and slipped and fractured his hip and ankle. He explained that he then had to finish the training session and carry about 150 pounds, and he compensated for the way he was walking and performing physical activity, which caused back pain. He stated that in 1998, his back gave out while at Fort Polk, and his pain has gotten progressively worse since that time. The Veteran also reported that he was cleaning the floor one year ago and felt his back pop. He noted he had an x-ray and an MRI six weeks later, and degenerative disc disease and spinal stenosis were diagnosed. The Veteran also states he was involved in a motor vehicle accident two months later, and his back pain has been severe since then. See 04/16/2019, MTR–NGF. The Veteran was afforded a VA medical opinion in December 2019 at which time the examiner indicated that the claimed back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated, “[t]he service records do not support any back problems or treatment for a back condition. There is no established medical nexus for the back condition, diagnosed as degenerative arthritis of the spine, related to service.” The examiner further opined the Veteran’s back disability is less likely than not proximately due to or the result of the Veteran’s service-connected left hip disability. He explained that the two conditions are not medically related; the back disability is a separate entity entirely from the service-connected left hip disability and unrelated to it. Medical literature does not support a medical relationship between the service-connected trochanteric bursitis of the left hip and the etiology for degenerative arthritis of the spine. A nexus has not been established. The examiner also noted that the May 2008 letter of support from G.S., D.C. does not provide an etiological relationship or rationale for the back pain due to the left hip disability; the letter only documents the care of the patient for the lower back pain and left hip as co-morbid conditions, which are likely to have future exacerbations. The reported history of lower back pain due to an injury in service, noted in the letter, has not been established as an etiology for the back pain. The December 2019 VA examiner additionally stated that the diagnosed back disability is not at least as likely as not aggravated beyond its natural progression by the service-connected left hip disability. The examiner explained, “[d]egenerative arthritis is not affected, or aggravated beyond its natural progression by bursitis of the hip. Degenerative arthritis involves erosion of the boney surfaces of the spinal vertebra. Bursitis involves inflammation of the bursa sac, specifically the greater trochanter of the left hip.” The examiner continued, “[t]here is no pathophysiological or etiological relationship between the two conditions. The medical literature does not support an aggravation. The letter submitted by the Veteran from Wellness Chiropractic Center dated 05/19/08 does not establish an etiological relationship between the [service-connected] left hip condition and the [low back pain]. There is no basis for aggravation.” In the August 2020 decision, the Board determined the December 2019 VA medical opinion to be inadequate with respect to the opinion on whether the back disability had its onset in service or otherwise is related to service. Specifically, the Board indicated the VA examiner’s conclusion that service records do not support any back problems or treatment for a back condition was inaccurate because STRs included the March 1998 complaint of the Veteran of low back pain that was made worse by running. As such, the claim on appeal was remanded in order to obtain a VA addendum opinion. Pursuant to the August 2020 Board Remand, a VA medical opinion was obtained in October 2020 at which time, the examiner opined that the Veteran’s diagnosed back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained STRs are silent regarding diagnoses or treatment of chronic low back disability. He noted the Veteran’s December 1995 entrance examination was silent for issues of low back pain. During active service, the Veteran started complaining of left hip pain in January 1997, and bursitis was diagnosed. In March 1998, the Veteran was consulted for physical therapy for a complaint of right lateral hip pain since November 1997, and an x-ray revealed a normal finding; the History of Present Illness noted that recurrent hip pain had become constant for one month without a history of injury and the Veteran reported chronic low back pain worse with running; there was an objective finding of normal posture and gait with chronic gluteus medius strain. In the January 1999 separation examination, the Veteran indicated no recurrent back pain as evidenced by the medical history report. The Veteran was diagnosed with degenerative arthritis of the spine in January 2010. Therefore, the examiner found the Veteran’s claimed of low back disability was less likely than not incurred in or caused by the instance of low back pain in-service or an in-service injury, event, or illness. There is no evidence of chronicity of care. There is no established medical nexus for the back condition, diagnosed as degenerative arthritis of the spine, related to service. The Board recognizes that the October 2020 VA examiner failed to address the question of secondary service connection as instructed in the August 2020 Board Remand. However, the inadequacies identified by the Board in the August 2020 decision pertained only to the question of direct service connection. As the December 2019 VA examiner thoroughly addressed the questions of secondary service connection and aggravation, no additional/addendum opinion was necessary. The Board therefore finds that the RO substantially complied with the August 2020 Remand directives. See Stegall, 11 Vet. App. at 271; see also Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall); Dyment v. West, 13 Vet. App. 141, 14647 (1999) (holding there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). There has been no contention to the contrary. In sum, the October 2020 VA examiner opined that the back disability was not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that there is no evidence of chronicity of care from the instance of back pain in 1998 to the onset of back pain in 2007. Moreover, as described above, the December 2019 VA examiner indicated that the diagnosed back disability was not proximately caused or aggravated by his service-connected left hip disability. Critically, the October 2020 and December 2019 VA medical opinions are based on review of the Veteran’s medical history to include interview and examination of the Veteran. The Board therefore places significant weight on the cumulative findings of the VA examiners as expressed in the October 2020 and December 2019 medical opinions. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). Notably, the private chiropractor, G.S., D.S., did not provide an opinion regarding the etiology of the Veteran’s back disability but instead stated the Veteran’s self-reported medical history, which is inconsistent with the treatment records that show no chronicity of symptomology since service. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (noting medical evidence was inadequate where medical opinions were general conclusions based on history furnished by appellant and on unsupported clinical evidence). Finally, although the record shows a diagnosis of degenerative arthritis, there is no probative evidence that arthritis was noted in service with continuity of symptomatology since service that is attributable to the chronic disease, nor is there any indication that arthritis was manifest to a compensable degree within one year of service separation. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Based on a review of the evidence, the Board finds that service connection for a back disability is not warranted. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The general principle that he experiences some symptoms of joint pain, which might be a symptom of disabilities, has some tendency to establish diagnoses. See Davidson, 581 F.3d at 1316; Kahana, 24 Vet. App. at 433, n. 4. The Veteran’s own assertions of entitlement to service connection concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376; Barr, 21 Vet. App. at 308-9; Falzone, 8 Vet. App. at 403 (lay person competent to testify to pain and visible flatness of his feet); with Clemons, 23 Vet. App. at 6 (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert, 21 Vet. App. at 462 (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). See also Colantonio, 606 F.3d at 1382 (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran’s favor when the evidence is in equipoise. Considering the record, including post-service medical evidence, VA examinations and medical opinions, the private medical opinion, and lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. Consideration of the entire record demonstrates that the weight of the competent and probative evidence is against finding a nexus between the Veteran’s current back disability and his active service, including on a secondary basis. The Board is sympathetic to the Veteran and is grateful for his service; however, the evidence in the record does not reach the level of equipoise. As the preponderance of the evidence is against the claim, service connection for a back disability must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.