Citation Nr: 21065542 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 15-29 593 DATE: October 26, 2021 ORDER Service connection for a lumbar spine disorder is denied. Service connection for a left foot disorder is denied. FINDINGS OF FACT 1. A lumbar spine disorder did not manifest in service, within the one-year presumptive period or for many years thereafter and is not otherwise related to service. 2. A left foot disorder did not manifest in service, within the one-year presumptive period or for many years thereafter and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a left foot disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from September 1980 to September 1989. Her active duty service from September 1989 to September 1991 has been determined to be dishonorable for VA purposes. In March 2019, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In May 2021, the Board most recently remanded this case for additional development. The Veteran also has a separate appeal pending before the Board for the issues of service connection for breast cancer, bone cancer, liver cancer, and back cancer. As the Veteran has requested and is waiting to be scheduled for a hearing in that appeal, those matters will be addressed by the Board at a later date. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 appellant 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). 1. Entitlement to service connection for a lumbar spine disorder. The Veteran seeks service connection for a lumbar spine disorder. She has specifically contended that she developed back pain during basic training doing field exercises/physical training, and she still has back pain. See March 2019 Board Hearing Transcript. Despite these contentions, however, the Veteran's service treatment records (STRs), to include a January 1991 separation examination, are silent for any complaints, findings, treatment, or diagnoses related to a lumbar spine disorder. Thus, it is not shown that she had any continuing problems with her back at the time of separation from service. Moreover, her post-service treatment records do not show any back problems until April 2010, when she appears to have first reported back pain. This medical evidence contradicts and outweighs the Veteran's reports of continuity of symptoms since service. Likewise, the more probative evidence of record establishes that the Veteran did not develop a lumbar spine disorder within one year following separation from service or for many years thereafter. See 38 C.F.R. § 3.309(a). Consequently, service connection for a lumbar spine disorder on the basis that such became manifest in service and persisted, or on a presumptive basis (for arthritis as a chronic disease under 38 U.S.C. § 1112), is not warranted. The question of whether the Veteran's lumbar spine disorder is otherwise etiologically linked to her active service was addressed in multiple VA examinations. In March 2020 and March 2021, two separate VA examiners rendered negative nexus opinions. However, these opinions were determined to be insufficient for rating purposes. Therefore, they will not be considered/discussed herein. In February 2021, another VA examiner provided a positive nexus opinion and explained that the Veteran's military service of 9 years required heavy lifting and physical training and her records demonstrate chronicity of care for low back pain. This opinion, however, was also determined to be insufficient for rating purposes because the examiner did not consider the Veteran's treatment records showing metastatic bone cancer of the spine and the Veteran's job duties as a tactical telecommunications center operator and administrative specialist. Notably, this evidence contradicts and outweighs by the examiner's finding that the Veteran's military duties required heavy lifting. Accordingly, the Board finds the February 2021 VA medical opinion to have little to no probative value. In June 2021, the Veteran was most recently provided a VA medical opinion to address the etiology of her lumbar spine disorder. The VA examiner rendered a negative nexus opinion and explained that, while the Veteran reported that her back pain initially began during basic training and she went on sick call several times during service, her 1991 service separation examination and medical history report showed no back related symptoms. The examiner noted that the Veteran's service records from September 1980 to September 1989 were also silent for imaging studies of the spine suggesting that the Veteran's back pain during basic training was most likely soft tissue in etiology and was most likely acute and resolved with treatment. The examiner also acknowledged the Veteran's June 2016 magnetic resonance imaging (MRI) report that showed moderate to severe spondylitic thecal sac stenosis at L4-L5 and indicated that such degenerative findings were known to be associated with age and obesity, which contributed to wear and tear of the weight bearing joints over time and back strain of soft tissue. The examiner indicated that the same MRI impressed that multiple bone metastases were also known to cause back pain and were likely the result of the Veteran's cancer diagnosed in 2007, 16 years after separation from service. The examiner concluded that the Veteran's long-standing obesity, age (57 at the time of the 2016 MRI), and history of metastatic infiltrating lobular carcinoma with associated lobular carcinoma made it difficult to ascertain with a 50 percent probability that the Veteran's back pain was isolated to service. It was the examiner's opinion that the Veteran's lumbosacral strain, to include the June 2016 lumbar spine results, were less likely than not incurred in or caused by the claimed back-related injury or illness between September 1980 to September 1989. The Board finds this opinion to be highly probative, as it was based on a thorough review of the Veteran's claims file, was reasoned, and adequately supported. The Board acknowledges the attorney's June 2021 contention, made by and on the Veteran's behalf, that the March 2021 VA examiner's opinion was inadequate. The attorney also indicated that the record contains a competent February 2021 nexus opinion associating the Veteran's back condition with her military service and, at the very least, the evidence is in equipoise and the Board should weigh reasonable doubt in the Veteran's favor. As noted above, however, both the February and March 2021 VA medical opinions were found to be insufficient for rating purposes. As such, the Board affords these contentions little to no probative value. In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's lumbar spine disorder manifested during active service, within one year of active service, or is otherwise related to active service. Therefore, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. Accordingly, the Veteran's claims for service connection for lumbar spine disorder are denied. 2. Entitlement to service connection for a left foot disorder. The Veteran seeks service connection a left foot disorder and asserts that her left foot disorder is related to wearing boots in service. After a thorough review of the record, the Board finds that service connection for a left foot disorder is not warranted. The Board acknowledges the Veteran's reports that suggest her left foot disorder was diagnosed in service and persisted since service. See March 2019 Board Hearing Transcript. Significantly, however, the Veteran's STRs, to include the January 1991 separation examination report and July 1991 report of medical history, are silent for any complaints, treatment, or diagnosis for any left foot problems. Moreover, post-service records reflect that, in October 2003, the Veteran denied any musculoskeletal issues or difficulty ambulating. She appears to have initially complained of left foot problems in October 2011 for treatment purposes and requested to see podiatry services as early as May 2012 for a bunion. This evidence is inconsistent with the Veteran's reports of continuous left foot problems since service. Thus, the Board finds that the more probative evidence of record weighs against establishing service connection under the theory of continuity of symptomatology. However, because the Veteran contended that her current left foot disorder was related to wearing boots in service, a VA examination for a medical opinion was obtained. In February 2021, the Veteran underwent a VA examination to determine the etiology of her left foot disorder. The examiner diagnosed left foot hallux valgus and rendered a negative nexus opinion. However, the VA examiner did not otherwise consider or discuss whether the Veteran's left foot disorder developed as a result of wearing military boots. Therefore, this opinion was deemed to be insufficient for rating purposes. In May 2021, the Board remanded this claim and instructed that an additional VA medical opinion be obtained to address the Veteran's reports that she developed foot pain as a result of wearing military boots. In June 2021, a VA medical opinion was obtained to comply with the Board's instructions. The VA examiner noted the Veteran's diagnosis for left foot hallux valgus and rendered a negative nexus opinion. The examiner acknowledged the Veteran's reports that she believed her foot condition was the result of wearing boots during service and that she received a suggestion of trying not to wear the boots when she did not have to. The examiner, however, noted that the Veteran denied foot trouble during her separation report of medical history in July 1991 and her separation examination noted normal findings on inspection of the bilateral feet. The Veteran's records were also silent for imaging studies of the bilateral feet during service from September 1980 to September 1989 or evidence of chronicity/continuity of consult for the left foot for 21 years between separation from service in 1991 and 2012. The examiner indicated that this suggested the Veteran's left foot hallux valgus was most likely new at the time of the consult for foot pain in 2012 and less likely related to service. Further, the examiner noted that the Veteran had long standing obesity documented in treatment records from 2011 to 2019, which was medically known to cause increased tension on the plantar fascia and its attachment at the first metatarsophalangeal (MTP) join, leading to deviation of the MTP joint pathognomonic of hallux valgus. Based on the Veteran's post service obesity, the examiner indicated that it was difficult to ascertain with 50 percent or greater probability that the Veteran's left foot hallux valgus could be isolated to the Veteran's claim of foot pain from wearing boots during service. Therefore, it was the examiner's opinion that the Veteran's left foot hallux valgus was less likely than not incurred in or caused by the claimed foot pain from wearing boots between September 1980 to September 1989 during service. The Board finds this opinion to be highly probative, as it was based on a thorough review of the Veteran's claims file, was reasoned, and adequately supported. There is no competent or probative medical opinion to the contrary. The Board acknowledges the Veteran's testimony that she believed her foot problems were a result of wearing boots in service. The Board finds, however, that she is not competent to speak to the etiology of her left foot disorder. Whether such a relationship actually exists between wearing military boots and developing left foot hallux valgus is a medical question beyond the scope of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed Cir. 2007). The Board also acknowledges the attorney's June 2021 contention, made by and on the Veteran's behalf, that the February 2021 VA examiner's opinion was inadequate. As noted above, however, the February 2021 VA medical opinion was found to be insufficient for rating purposes. Likewise, the Board afford this contention little to no probative value. (Continued on the next page) Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's left foot disorder manifested in service, within the first year following her separation from active duty service, or was otherwise related to her active duty service. Accordingly, her claim for entitlement to service connection must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.