Citation Nr: 21004666 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 08-11 374 DATE: January 27, 2021 ORDER Entitlement to service connection for a low back disorder is denied. REMANDED Entitlement to service connection for a left ankle disorder is remanded. FINDING OF FACT The preponderance of evidence is against finding that the Veteran’s low back disorder is related to service, to include as secondary to service-connected pes planus. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1972 to August 1975. He served in the U.S. Army, including service in Korea. The Board thanks the Veteran for his service to our country. The issues of new and material evidence to reopen claims for left ankle and back disorders were previously before the Board in September 2011 and May 2013, when the Board remanded the issues, and in October 2015, when the Board denied the claims. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a February 2017 Order, granting a February 2017 Joint Motion for Remand (Joint Motion), the Court vacated and remanded the October 2015 Board decision consistent with the terms of the Joint Motion. The Board reopened and remanded the claims in May 2017 to afford the Veteran a reasonable time to submit evidence supporting his contentions. The case has now returned to the Board for further appellate review. Entitlement to service connection for a low back disorder is denied. The Veteran contends that his low back disorder is related to his service-connected bilateral pes planus disability. The Board finds that service connection is not warranted. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection is also warranted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). To establish secondary service connection there must be evidence: (1) of a current disability (for which secondary service connection is sought); (2) of an already service-connected disability; and (3) that the current disability for which service connection is sought was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Decisions of the Board shall consider all information and lay and medical evidence of record in a case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Medical opinions must contain clear conclusions with a reasoned medical explanation based on supporting data. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). When there is an approximate balance of positive and negative 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(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this case, in an August 1972 report of medical history, the Veteran endorsed recurrent back pain; in the physician’s summary, the examiner noted his complaint of low back pain and commented that it clears in a few minutes. In a March 1974 service treatment note, the Veteran complained of back pain. In an April 1974 note, physical examination showed pelvic tilt (scoliosis) of the left side and in another record days later, the treatment provider noted recurrent low back pain secondary to intrinsic factors of poor posture and poor use of body mechanics and ordered lumbosacral spine imaging to rule out degeneration. The resulting lumbosacral spine radiographic report showed minimal scoliosis which the provider concluded may be positional; no other abnormalities were seen. In a July 1975 separation report of medical history, the Veteran again endorsed recurrent back pain and in the physician’s summary, the examiner noted slight low back pain which improved with exercise. In the separation examination, under the clinical evaluation, the examiner noted mild acne vulgaris, mild pes planus, evaluation by psychiatric service showing immature personality, and a scar and tattoo but did not note any abnormalities with respect to the Veteran’s spine or other musculoskeletal system. In an October 1978 VA examination report, the Veteran reported that his low back began hurting especially in the left lumbosacral area after a 12-mile speed march during training. On physical examination the examiner noted nothing unusual except tenderness to palpation in the left paraspinal muscles in the thoracic and lumbar spine; the examiner noted that there was no obvious tilt of the pelvis. The examiner rendered a diagnosis of low back pain which was probably lumbosacral strain but which was not present at the time of examination. In an April 2001 physical therapy consultation note, the physical therapist noted that the Veteran exhibited bilateral toeing out during ambulation as well as bilateral pronation during ambulation. In a May 2001 emergency department note, the Veteran reported having sore feet for many years. He reported that he had recently been compensating when walking and felt that it was affecting his lower back as it ached periodically. In a July 2005 neurosurgery note, the Veteran complained of back pain which he had had for the past 20 years. He reported no history of trauma or surgery and no significant comorbidity. On physical examination, the treatment provider, a PA-C G., noted that gait was well within normal limits. The provider noted moderate to severe pronation, right greater than left, of his ankles and severe plantar fasciitis secondary to fallen arches. There are no medical conclusions or assessments associating the Veteran’s back disorder to pes planus. In an October 2006 VA examination report, the Veteran reported a history of mild low back pain which had been off and on for 20 years but had worsened 3 years before. He reported climbing in ditches and going up and down and on uneven ground at the time. He reported no specific injury. He reported that his back pain was worse when his feet, knees, and ankles are bad. The examiner rendered a diagnosis of degenerative arthritis of the low back and concluded that the degenerative changes were unrelated to his service-connected pes planus. In a March 2008 statement, the Veteran stated that a neurologist, Dr. G., at a VA hospital told him that all of his problems were due to his severe grade 3 bilateral pes planus. The Board notes that there are no VA neurology treatment providers of record whose names are similar to Dr. G. except PA-C G. and that the July 2005 note is the only note of record in which PA-C G. treated the Veteran. In a September 2011 VA examination report, the Veteran reported that his back pain had started approximately 10 years before and denied any injury. The examiner rendered a diagnosis of degenerative disc disease of the lumbar spine and concluded that the disorder is less likely than not caused or aggravated by the Veteran’s service-connected pes planus, explaining that degenerative disc disease would not be expected to be caused or aggravated by pes planus unless there is a severe disruption in gait over a long period of time. The examiner stated that he had a slight, intermittent, antalgic gait and there was no evidence of a severely asymmetric gait in the records. In an August 2012 note, the Veteran requested a referral to podiatry, stating that he had flat feet but that his walking had a secondary cause of back problems. In a podiatry consult request later that month, the requesting provider noted that the Veteran had reported that his pes planus was causing his back and ankle pain. In a September 2012 podiatry consultation note, the Veteran stated that he would like to be assessed for a disability claim and reported that he had pain in both ankles which extended up the legs and into the back. The treatment provider noted that the Veteran had been informed that podiatry does not make decisions regarding disability and that he would only receive podiatric assessment and treatment. There are no medical conclusions or assessments regarding the etiology of the Veteran’s back disorder. In a September 2012 statement associated with the record in October 2012, the Veteran stated that he had an appointment with podiatry to examine his feet and ankles and that they figured the problem with his ankles resulted from his feet, which also contributed to his back and knee problems. In an October 2019 physical therapy consultation note, on physical examination the physical therapist noted a gait with bilateral foot eversion, flat footedness, left lateral trunk lean, and bilateral genu varus and identified impaired gait mechanics as an impairment. Except as noted above, the Veteran’s gait was consistently noted as stable and normal. The Board finds that the preponderance of evidence is against finding that the Veteran’s back disorder is related to service. With respect to a direct theory of service connection, there are complaints of back pain in service; however, there is no evidence of record that his current degenerative disc disease is related to his in service complaints of low back pain or other evidence of record indicating that his disability is related to his in-service duties or otherwise had its onset in service. Indeed, his back pain was attributed in service to posture and body mechanics and at separation, the examiner noted that his low back pain had improved with exercise and did not note any spinal abnormalities; in the October 1978 VA examination report, the examiner concluded that the in-service back pain was likely lumbosacral strain but was no longer present. The Board notes that no opinion has been rendered with respect to a direct theory of service connection. In certain circumstances VA bears a duty to assist the Veteran. 38 C.F.R. § 3.159. VA must provide a medical examination or obtain a medical opinion if there exists (1) competent evidence of a current disability; (2) evidence of an in-service event, injury, or disease; and (3) an indication that the current disability may be associated with the Veteran’s service or another service-connected disability; but (4) there is otherwise insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). While the third factor creates a low threshold and evidence “indicating” that a condition “may be” associated with service need be neither medical nor competent, conclusory testimony suggesting the existence of a nexus is not sufficient; a factual basis is required. Id. at 83; see Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010). As detailed above, however, a review of the record reveals no evidence indicating that an association may exist between the disorder and the Veteran’s in service back complaints. With respect to service connection for degenerative disc disease as a chronic disease, there is no evidence of degeneration of the lumbar spine in service or within a year after separation. April 1974 imaging ordered to rule out degeneration revealed no abnormalities other than scoliosis and the low back pain was later concluded to be likely lumbar strain. Finally, with respect to a theory of secondary service connection, the Board finds the September 2011 VA examiner’s opinion highly probative as it is based on an in person examination and review of the record and includes a rationale based on medical evidence of record. While the Veteran is competent to report the onset of his back pain when he began compensating for his foot pain and to report worsening pain when his feet are bad, he is a layperson and does not profess to have the medical expertise required to determine the etiology of the degenerative disc disease or to distinguish between correlation or a causal relationship with respect to his back disorder and service-connected pes planus. Jandreau, 492 F.3d at 1377. There is no competent scientific or medical evidence of record to support his contention that his back disorder is secondary to the service-connected disability. The Board acknowledges the Veteran’s March 2008 and September 2012 statements attributing positive etiology opinions to (presumably) PA-C G. and a VA podiatrist in September 2012. However, these statements are not supported by the July 2005 and September 2012 notes and the Court has held that “the connection between the layman’s account, filtered as it was through a layman’s sensibilities, of what a doctor purportedly said is simply too attenuated and inherently unreliable to constitute ‘medical’ evidence.” Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Further, the 2017 Board remand and August 2019 letter to the Veteran specifically afforded the Veteran a period of time to submit a statement from his VA neurologist or other medical professional to support his claim; however, no statements were received. Accordingly, the Board finds that the preponderance of the evidence is against finding that service connection for the low back disorder is warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The claim is, therefore, denied. Gilbert, 1 Vet. App. at 55; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a left ankle disorder is remanded. A remanded is necessary for an addendum opinion as to the nature and etiology of the Veteran’s left ankle disorder. In a September 2011 VA examination report, the examiner concluded that the Veteran’s right ankle posterior tibial tendon dysfunction was at least as likely as not related to service-connected pes planus, as significant pes planus can cause posterior tibial tendon dysfunction because stress is placed on that tendon when the foot pronates. The examiner concluded that left ankle strain is less likely than not related to service as the Veteran’s left-sided pes planus was not as severe as the right and ankle strain would not be expected to be caused or aggravated by pes planus. However, the examiner did not address multiple assessments of right and left posterior tibial tendon dysfunction or multiple notations of severe bilateral pes planus. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disability on appeal. Please ask the Veteran to provide the releases necessary for VA to secure private treatment records. 2. After the action requested in paragraph 1 is complete, please refer the claim to an appropriate clinician for an opinion as to the nature and etiology of the Veteran’s left ankle disorder. The Veteran’s claims-file must be made available to and reviewed by the clinician. The clinician is requested to identify all left ankle disorders current during the period on appeal, including left posterior tibial tendon dysfunction. For each disorder identified, the clinician is requested to opine as to the following: (a.) Is the left ankle disorder at least as likely as not (a 50 percent or greater probability) caused by the Veteran’s service-connected pes planus? (b.) Is the left ankle disorder at least as likely as not (a 50 percent or greater probability) aggravated by the Veteran’s service-connected pes planus? In rendering the opinion, the clinician is requested to consider and explain, as appropriate: • A September 28, 2011 VA examiner’s statement that significant pes planus can cause posterior tibial tendon dysfunction as stress is placed on that tendon when the foot pronates and conclusion that right ankle posterior tibial tendon dysfunction is at least as likely as not related to pes planus. • A November 19, 2001 VA examination noting that, while clinical findings were not confirmed by X rays of the feet or weightbearing (referencing a November 19, 2001 imaging report finding no evidence of left-sided pes planus with only minimal flattening of the arch on the right), clinically, the Veteran does have very severe grade 3 bilateral pes planus. The examination also noted that another doctor who examined the Veteran stated that he had never seen flat feet that severe. • A June 21, 2004 podiatry consultation note noting bilateral tenderness at insertion of the posterior tibial tendon, with right greater than the left, and both feet severely abducted with the navicular almost resting on the ground. • A June 21, 2004 physical therapy consultation note noting significant biomechanical dysfunction in both feet. • A May 9, 2005 podiatry consultation assessment of bilateral posterior tibial tendon dysfunction with severe pes planus. • A July 7, 2005 neurosurgery consultation note noting moderate to severe pronation of the ankles, with right greater than the left. • A December 21, 2012 podiatry assessment of bilateral posterior tibial tendon dysfunction. ONLY IF the clinician determines that an examination is necessary for the addendum opinion, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the disorder. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an   explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, 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.