Citation Nr: A21017455 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 210326-150389 DATE: October 28, 2021 ORDER Entitlement to service connection for a left fibula fracture, is granted, but is recategorized as radiculopathy, left lower extremity, sciatic associated with degenerative arthritis of the thoracolumbar spine (left leg disability) is granted. FINDING OF FACT The Veteran's left leg disability is proximately due to his service-connected back disability. CONCLUSION OF LAW The criteria for service connection for a left leg disability as secondary to degenerative arthritis of the thoracolumbar spine are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1981 to November 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) denying a claim for a left leg fracture. The Veteran sought to reopen the claim in September 2014. In a December 2018 opinion, the Board of Veterans' Appeals (Board) granted the Veteran's request to reopen the claim and remanded the claim for further development. The claim now returns to the Board. In a January 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim of left leg disability, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Left leg disability The Veteran contends that he should be entitled to a left leg disability because of the fracture that he received while in the service. The preponderance of the evidence does not support such a conclusion, but rather, supports a finding that the Veteran has a left leg disability which is secondary to his back disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In order to establish service connection on a secondary basis, there must be (1) a current non-service-connected disability, (2) a service-connected disability, and (3) evidence showing that the current non-service-connected disability is either proximately due to or the result of, or aggravated (increased in severity) beyond its natural progress by the service-connected disability. 38 C.F.R. § 3.310. The Veteran reports pain and numbness in his left leg. Thus, the first element for service connection is met for direct service connection are met. The second element is also met; the Veteran fractured his left fibular while in service in Germany. Although the first two elements are met, the claim fails on the third element for direct service connection. According to the Veteran, during service, his left leg continued to hurt after it was healed, but that he dealt with the pain. He continued to deal with pain outside of the service. From November 1996 to June 2018 the vast majority of his complaints concerning his left leg had to do with numbness and not pain. In March 1998, the Veteran complained of low back pain and intermittent left leg pain. The Veteran also complained of knee pain and tingling in his left lower extremity in May 1998. In August 1998, he reported that he had pain going from his knee to his ankle and that his leg would give out. That month, at a VA examination the Veteran had a reduced range of motion in his knee and hyperactive knee jerks. However, the hyperactive knee jerks were present in both the right and left leg. He also had a restricted range of motion in his ankles. There were no symptoms of bone disease, malunion, or nonunion. In March 2012, the Veteran stated that over the past three to four years his back pain caused his legs to go numb. That same month he reported tingling in both lower extremities. In June 2018, the Veteran complained of left leg pain that had radiated from his back for the past 30 years. In July 2018, the Veteran reported being diagnosed with a left leg fracture. However, evidence concerning the July 2018 diagnosed leg fracture are not in the record. In August 2018, Dr. S.P. opined that the Veteran's leg impairment was caused by his in service fracture and that his leg pain was worsened by his back disability. Dr. S.P.'s opinion is based on generalities about medicine and not this particular Veteran's problems. She does not reference any current medical imaging. Therefore, her opinion is given little weight. A July 2019 x-ray showed cortical thickening of the lateral distal fibular diaphysis with subtle linear lucency along the lateral aspect. This gave doctors concern for an underlying stress fracture, but further imaging was needed for verification. In November 2019, VA physician, Dr. M.R., stated that the Veteran's left leg disability does not cause a loss of functional range of motion because the injury does not involve a joint, but does produce pain with prolonged standing or walking and limitations of motion due to pain. Dr. M.R. added that the Veteran experienced excess fatigability, swelling, disturbance of locomotion, and interference with standing. He added that the July 2019 medical imaging shows an old fracture that "may suggest an active non healed facture/stress fracture." In using the word "may" Dr. M.R. does not definitely state the cause of the leg pain or render an opinion. In November 2020, Dr. I.M. stated the left knee pain was consistent with osteoarthritis. In February 2021 a VA examiner stated there is no evidence of chronicity or continuation of treatment for the leg since the leg was fractured. The examiner added the facture healed and the left knee strain and lower radiculopathy were unrelated to the fracture. Therefore, the examiner opined that it is less likely than not that the Veteran's left leg pain is related to the in-service leg injury. During the same examination, the examiner opined that the Veteran's in-service back trauma could cause inflammation, pinching, and compression of nerves which would cause pain and numbness in the lower extremities. The examiner opined that it is more likely than not that the Veteran's leg pain was secondary to his service connected lower back disability. To recap, the Veteran satisfies the first two elements for direct service connection. He has a leg disability which produces pain and a decreased range of motion. He injured his leg while in service. However, the leg injury healed. There is no concrete evidence that the Veteran's leg fracture persists. There is only one generalization from a medical professional and a statement in the record by the Veteran. Medical imaging does not support finding the Veteran's leg is fractured or that it the manner in which it healed causes pain. Moreover, the Veteran stated the pain radiated from his back and he provided different time periods for the duration of pain. This leaves one to believe that the Veteran is unsure how long he experienced pain, but more than likely it was not continuous since the fracture occurred. Based on medical imaging, the opinions of experts, and statements made by the Veteran, the Board finds that the fracture is not the source of the leg injury. Therefore, the claim fails on a direct service connection basis. However, the claim meets the criteria to be service connected on a secondary basis. Once again, the Veteran has a leg disability and is service connected for degenerative arthritis of the thoracolumbar spine. The February 2021 VA examiner opined that the leg pain was likely caused by the back pain. There is no countervailing opinion. Therefore, the opinion is given great weight and the Board finds that the Veteran is entitled to service connection for a left leg disability on a secondary basis. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Chalker, 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.