Citation Nr: 21001117 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 13-28 141 DATE: January 7, 2021 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran has a low back disability proximately due to, or aggravated by his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b); 38 C.F.R. §§ 3.102, 3.159, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to June 1967 and from May 1968 to December 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in February 2020. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. The Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ) of the Board in September 2015. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. However, the VLJ who conducted the September 2015 Board hearing is no longer employed by the Board. In October 2020, the Veteran and his representative were sent a letter notifying them that the VLJ who presided over the September 2015 hearing is no longer employed by the Board, and offering another hearing before a different VLJ. The letter notified the Veteran that he had 30 days from the date of letter to respond and that if no response was received the Board will assume the Veteran does not want another hearing and the Board will proceed accordingly. The Veteran did not respond to the letter. As such, the Board will consider the case on the evidence of record. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to service connection for a low back disability is denied. The Veteran contends that he has a low back disability that is secondary to his service-connected disabilities. Specifically, the Veteran testified that his current low back injury began in the 1990’s and is not directly related to his active service but is secondary to his service-connected right ankle and bilateral knee disabilities. See September 2015 Board hearing transcript. Because the Veteran has not raised, and the record does not reasonably raise, the issue of entitlement to service connection on a direct basis, the Board’s adjudication will consider only entitlement to service connection on a secondary basis. 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. The question for the Board is whether the Veteran’s low back disability is proximately due to or the result of, or are aggravated beyond their natural progression by his service-connected lower extremity disabilities. The Board concludes the preponderance of the evidence is against finding that the Veteran’s degenerative arthritis of the spine is proximately due to or the result of, or aggravated beyond its natural progression by 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. The March 2020 VA examiner opined that the Veteran’s low back disability is less likely than not caused or aggravated by his service-connected right ankle disability and/or bilateral knee disability. In support of that opinion, the examiner explained that the medical literature does not support that ankle and/or knee disabilities cause or result in multilevel spinal degenerative disc disease. The VA examiner further explained that antalgic gait strains the bilateral legs and low back musculature; but it does not support an etiologic relationship between chronic antalgic gait and the onset and/or development of lumbar spine degenerative vertebral bone or disk arthritis. The VA examiner also opined that the Veteran’s low back disability is less likely than not aggravated beyond its natural progression by his service-connected disabilities. As rationale, the VA examiner explained that gait abnormalities increase with age due to arthritis, joint pain, and numbness of the feet. The VA examiner further explained that the medical evidence of record does not support that the natural history of the Veteran’s chronic low back condition has been aggravated beyond its natural progression by his service-connected disabilities. The Board affords great probative weight to the March 2020 VA examiner’s opinion because it is supported by appropriate rationale that provides insight into the medical aspects of the possible relationship between degenerative arthritis of the spine and an antalgic gait. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Barr v. Nicholson, 21 Vet. App. 303 (2007), Stefl v. Nicholson, 21 Vet. App. 120 (2007), Prejean v. West, 13 Vet. App. 444 (2000). In a June 2020 opinion, the Veteran’s private physician stated that it is “certainly possible” that the Veteran’s low back disability is secondary to injuries sustained to his lower extremities, an altered gait and altered body mechanics. The Board notes that the June 2020 private opinion is equivocal as it states that it is “certainly possible” that the Veteran’s low back disability is secondary to his service-connected disabilities. Therefore, the opinion is entitled to limited probative value, and the opinion does not weigh against the significant probative value of the March 2020 VA examiner’s opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (for a medical opinion to be adequate for decision-making purposes, it must be supported by a rationale and explanation for the conclusion reached). The Board acknowledges the Veteran’s belief that his low back disability is secondary to his service-connected disabilities. However, the Veteran is not considered competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between the low back and an antalgic gait related to lower extremity disabilities, which the Veteran has not been shown to possess. Therefore, it is outside the competence of a lay witness such as the Veteran. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As such, his statements are not probative and do not weigh against the March 2020 VA examiner’s opinion. In summary, the most probative evidence of record indicates that the Veteran’s low back disability is not secondary to service-connected disabilities and are not otherwise related to an in-service injury or disease. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a low back disability. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ANTHONY C. SCIRE, JR. Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.