Citation Nr: 21003055 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-16 817 DATE: January 19, 2021 ORDER Entitlement to service connection for a low back disability, to include as secondary to bilateral pes planus, is denied. FINDING OF FACT The evidence fails to establish that the Veteran’s claimed low back disability was incurred in, or is otherwise etiologically related to, the Veteran’s active duty military service; the disability was also not incurred or aggravated as secondary to service-connected bilateral pes planus. CONCLUSION OF LAW The criteria for service connection for a low back disability to include as secondary to bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1988 to September 1989. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. This case was previously before the Board in February 2018 and most recently in September 2019, at which time it was remanded for additional development to include a new VA examination to address the nature and etiology of his claimed back condition. The Board notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA’s duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998); but see D’Aries v. Peake, 22 Vet. App. 97, 104 (2008). The matter has returned to the Board for appellate review. The Veteran asserts entitlement to service connection for a low back disability secondary to his already service-connected bilateral pes planus disability. The Board notes that neither the Veteran nor his representative have asserted, nor does the record reflect, that the claimed low back condition first manifested during service or was directly related to his active duty service. It has only been claimed that the disability is secondary to service-connected bilateral pes planus. See November 2011 Statement in Support of Claim; November 2011 VA 21-526EZ Fully Developed Claim; see also August 2012 Notice of Disagreement (NOD). Thus, the Board will address only whether the Veteran is entitled to service connection for his claimed low back disability on a secondary basis. See Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). In general, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or a disease incurred or aggravated in the line of duty during active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if preexisting such service, was aggravated therein. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. However, VA will not concede aggravation unless the baseline level of severity of the non-service-connected disease is established by medical evidence. 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107(b). A Veteran is competent to report on that of which he has actually observed and is within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465 (1994). 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. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records (STRs) in the claims file include a February 1989 sick call record wherein the Veteran reported low back pain for 4 days. The Veteran was diagnosed with muscle sprain. No history of direct back trauma in the past 72 hours was noted. An examination was negative for pain with palpation, and the Veteran was noted to have a full range of motion (ROM). The STRs also contain an August 1988 report of medical examination (RME) for enlistment where the Veteran’s spine and other musculoskeletal was noted normal, an August 1988 report of medical history (RMH) where the Veteran denied recurrent back pain, a June 1989 RME for a Medical Evaluation Board where the Veteran’s spine and other musculoskeletal was noted normal, and a June 1989 RMH where the Veteran denied recurrent back pain. VA treatment records include an August 2011 preventative medicine record that noted a complaint about back pain that the Veteran assessed as 8/10. February 2012 spine imaging notes minimal dextroscoliosis of the lower lumbar spine likely positional. The spine is otherwise normal without fracture, dislocation, radiographic evidence of disc/apophyseal joint disease. The paravertebral soft tissues are normal. A February 2012 podiatry record notes the Veteran reported occasional back pain. A separate February 2015 nurse practitioner record notes low back pain and tenderness. A third February 2015 treatment record notes the Veteran declined an MRI to address his reported back pain and tenderness. A March 2015 VA general medicine record notes the Veteran is complaining about back pain following a July 2014 motor vehicle accident. The provider noted that if new onset, this might correlate with his back pain. A May 2019 podiatry record notes the Veteran endorsed low back problems. An October 2019 VA orthopedic surgery inpatient record is negative for back pain. The claims file includes a February 2012 VA back (thoracolumbar spine) conditions examination wherein the examiner confirmed a diagnosis of back pain secondary to pes planus. The examiner noted the Veteran’s back pain does not impact his ability to work. The examination showed normal findings for range of motion (ROM). The examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran’s back pain was caused by the service-connected bilateral pes planus disability. In April 2012, the RO requested clarification of the diagnosis noted above and new examination if deemed necessary. The RO observed the diagnosis of back pain secondary to pes planus but noted pain was not considered a disability. The RO also highlighted the February 1989 STR noted above showing a diagnosis of muscle sprain after the Veteran complained of low back pain and requested an opinion for direct service connection. In a subsequent April 2012 medical opinion, the same examiner opined that the Veteran’s claimed low back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury event or illness. As a rationale, the examiner noted that the records reveal that the injury was due to a contusion with no record of permanent injury, further noting that the history is compatible with blunt trauma which resolved and was not referable to present complaints of back pain. The claim for service connection was denied in the May 2012 rating decision on appeal. That same month, the Veteran submitted a NOD with the May 2012 rating decision. The Veteran’s spouse and daughter submitted lay statements in September 2012 asserting that the Veteran’s feet and legs cause enough pain that he is unable to participate in family events. The Veteran also submitted a September 2012 lay statement wherein he asserted that he injured his feet on a road march, and they have hurt since that time and now he is experiencing back pain. The Veteran requested the Decision Review Officer (DRO) process in correspondence dated September 2012. A Statement of the Case (SOC) issued in March 2014 continued the denial of service connection. In an October 2015 medical opinion, the examiner provided negative etiology opinions for both direct service connection and as secondary to his service-connected bilateral pes planus. As a rationale for both opinions, the examiner noted that the Veteran had a normal back examination. In an October 2015 addendum to the medical opinion, the examiner reported that February 2012 back X-rays were normal except for minimal dextroscoliosis that was probably positional. In May 2016 the RO sought clarification of conflicting medical evidence in the February 2012 examination and April 2012 medical opinion. In a May 2016 medical opinion, the examiner reviewed the conflicting medical evidence and noted that the February 2012 VA back examination showed objective evidence of painful forward flexion and reduced left lateral rotation but did not provide a diagnosis adequate for compensation purposes. In contrast, the April 2012 clarification VA medical opinion appears to confirm a diagnosis of low back strain secondary to contusion; however, a negative opinion was provided as to the referenced contusion having occurred during service, noted as resolved and not referable to the present complaints. The examiner noted there is no diagnosis to account for the current complaints. Based on the above, the examiner opined that it is not at least as likely as not that the Veteran’s back condition is directly related to service. As a rationale, the examiner noted, notwithstanding evidence of blunt trauma in service, there is no clearly documented evidence of a continuum of care from that time until February 2012. The examiner also noted that VA treatment records are initially silent for back pain; his only complaint was foot pain. The February 2012 back examination was conducted by a back surgeon who noted a diagnosis of mild back strain due to the Veteran’s current employment on an assembly line. February 2012 back X-rays showed minimal dextroscoliosis of the lower lumbar spine that was likely positional. The Veteran’s spine was otherwise noted to be normal without fracture, dislocation, or radiographic evidence of joint disease. The paravertebral soft tissues were also normal. The April 2012 medical opinion noted that the records revealed the back injury due to contusion with no record of permanent injury. The history was compatible with blunt trauma which resolved and was not referable to any present complaints. Finally, the examiner noted that the October 2015 medical opinion and addendum resulted in negative etiology opinions for both direct service connection and as secondary to his service-connected bilateral pes planus based on a normal back examination. An amended May 2016 medical opinion addressed secondary service connection. The examiner opined the Veteran’s claimed back condition is less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected bilateral pes planus condition. As a rationale, the examiner noted there is no evidence of any connection. There is no clearly abnormal gait that could have placed undue strain on the back. Following a February 2018 remand, the Veteran was subsequently afforded a new VA spine examination in December 2018. The examiner confirmed a diagnosis of lumbosacral strain from 2011. No history of back injury was noted, but the Veteran reported that pain was constant. The remarks section of the report notes mild disability; no evidence of pain on passive ROM testing; and no evidence of pain with non-weightbearing use. The examiner opined in the attached medical opinion that the back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner noted there are no records of back pain in STRs. The Veteran first noted back pain in 2011. The examiner also opined the condition claimed is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. As a rationale, the examiner noted that the Veteran has a tendency to have spinal issues based on back pain and MRI of cervical spine shows degenerative disc disease (DDD) and disc bulges from C2-T1 which is unlikely to be caused by flat feet. As to aggravation, the examiner noted it was not possible to determine a baseline level of severity of the claimed low back disability prior to aggravation but the Veteran’s claimed low back disability was at least as likely as not aggravated beyond its natural progression by his service-connection bilateral pes planus. As a rationale, the examiner noted the Veteran has flat feet and has stood for 8 hours a day in assembly plant for past 10 years and that has worsened his back pain. The appeal returned to the Board in September 2019 at which time, the Board found that all of the medical opinions in this matter were flawed, noting they either lacked sufficient rationale or were based on incorrect facts, and thus did not allow for an informed decision to be made in this case. The Board remand the matter for another VA examination to address the nature and etiology of the Veteran’s claimed low back condition. The Veteran was afforded a new December 2019 VA back (thoracolumbar spine) conditions examination wherein the examiner did not confirm a diagnosis for any low back conditions. The medical history section of the report acknowledges the Veteran had complained about back pain but notes he has not received treatment for a low back condition. Imaging was negative for abnormalities. ROM results were normal. No pain was noted on examination; however, there was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue with slight lower midline tenderness L5 and even less paraspinal muscles at same level. No functional impairment was noted. The remarks section of the report notes no history of back pain or injury in the service. There was no documented back disease on the exam other than mild tenderness in lower back. The most recent X-rays were negative. The examiner opined it is less likely than 50 percent that the Veteran has a back condition related to active service. As a rationale, the examiner noted that the Veteran is claiming a back condition because he has foot pain. The examiner could not identify any back condition, and back pain is not caused by diseases of the feet and ankle. A June 2020 deferred rating noted that the December 2019 medical opinion did not fully address the questions raised by the Board’s remand and sought an addendum which was obtained in July 2020. The examiner opined the Veteran does not have a diagnosis of a low back disability that is at least as likely as not (50% or greater probability) manifested during or otherwise related to the Veteran’s active military service. As a rationale, the examiner noted STRs document a complaint about low back pain; however, there was no documented history of trauma within the prior 72 hours, and there is no documentation of sciatic symptoms. Physical examination was negative for swelling, discoloration, obvious spinal deformity and significant pain with palpation. ROM was normal with reports of pain. The Veteran was diagnosed with muscle spasms consistent with back strain. The Veteran was treated with muscle relaxer medication. The examiner indicated an inability to locate any documentation of a direct blow injury resulting in a back contusion in the STRs. Finally, the examiner noted the back strain resolved after treatment and without complications. The STRs were negative for subsequent sick call visits for complaints about back pain and the STRs did not document a chronic permanent back disability. As to continuity of care, the examiner could not identify any documentation in the claims file to establish treatment for a back condition within the first few years following separation from active service. The first medical record documenting complaints of back pain is the February 2012 VA back examination. The examiner during that examination provided a negative etiology opinion for service connection. Thus, while the STRs document treatment for muscle spasms in the back consistent with a diagnosis of back strain, this condition was treated with medication and resolved. As to secondary service connection, the examiner opined that the Veteran does not have a diagnosis of a low back disability that is at least as likely as not (50 percent or greater probability) proximately due to or the result of his service-connected bilateral pes planus. As a rationale, the examiner noted there is conflicting information documented by the examiner during the February 2012 VA back conditions examination. While a diagnosis of back pain secondary to pes planus was confirmed, there is no explanation or supporting evidence to suggest a back condition secondary to pes planus. The remarks section of the February 2012 VA examination report noted that the examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran’s back pain was caused by the pes planus. Normal findings were noted during the examination. February 2012 VA treatment records indicate the Veteran was treated by podiatry with reports of chronic pain in the arches of the feet and occasional back pain. There was documentation of the Veteran doing assembly line work, standing in the same spot for 8 hours with no history of back injury or foot injury. Recommendations were made for an X-ray of the lumbar spine to rule out stenosis as a cause for the back pain. The Veteran was seen by his primary care provider the same day. An X-ray study of the back was unremarkable. The primary care provider noted the Veteran declined an MRI study of the back to rule out problems with discs and/or degenerative changes in the back. The examiner noted a review of evidence-based medical literature generated by the American Academy of Orthopedic Surgeons indicates there are many potential causes for low back pain, including after specific movement such as lifting or bending. Based on review of the available history, there is no evidence to suggest that the Veteran has a diagnosis of a low back disability that is at least as likely as not (50 percent or greater probability) proximately due to or the result of bilateral pes planus. As to aggravation, the examiner opined the Veteran does not have a low back disability that is at least as likely as not aggravated beyond its natural progression by his service-connected bilateral pes planus. As a rationale, the examiner noted the Veteran’s subjective reports of chronic back pain have an undetermined etiology. The claims file includes multiple VA back examinations including the most recent December 2019 examination. However, other than subjective reports of back pain, there is no documentation of significant decline in spinal range of motion, significant decline in back function, or focal neurological deficits related to back problems. Based on the above medical evidence, the Board acknowledges that the Veteran’s medical records contain one unsupported etiology opinion indicating that his claimed low back condition is related to his service-connected pes planus. However, the Board finds that the most recent medical opinion is the most thorough and thus the most probative medical evidence in this claims file. This opinion is based upon a claims file review. The remaining competent evidence of record does not support a link between a claimed back disorder and either service or a service-connected condition. While the Veteran believes that he has a current diagnosis of low back condition, and he is competent to observe lay symptoms, he does not have the training or credentials to provide a competent opinion as to a diagnosis or the etiology of such diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). Consequently, the Board gives more probative weight to the multiple examinations which have not supported the claim. Overall, the preponderance of the evidence is against the Veteran’s claim, and the claim must be denied. The Veteran is certainly welcome to apply to reopen this claim in the future. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, 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.