Citation Nr: 21066903 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 09-23 501 DATE: November 2, 2021 ORDER Entitlement to service connection for lumbar spondylosis and intervertebral disc syndrome (back disability) is granted. FINDING OF FACT The probative evidence of record establishes that the Veteran's back disability was aggravated beyond its natural progression by his service-connected right foot disability. CONCLUSION OF LAW The criteria for service connection for a back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION This case was originally before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran first testified at a Travel Board hearing before the undersigned Veterans Law Judge in June 2013. A transcript of the hearing is associated with the Veteran's electronic claims file. A July 2014 Board decision denied the Veteran's claim for service connection for a low back disability. A July 2015 order of the United States Court of Appeals for Veterans Claims (Court) implemented a Joint Motion for Remand (JMR), vacating and remanding the Board denial. Thereafter, the Board remanded the claim for development pursuant to the JMR in January 2016. After the development was completed, the Board once again denied the Veteran's claim in June 2017. Once again, the Veteran appealed the claim to the Court. In January 2019 memorandum decision, the Court set aside the June 2017 decision and remanded the claim for further proceedings. Thereafter, the Veteran requested a second hearing, as was his right. See Quinn v. Wilkie, 17-4555 (Vet. App. 2019). A second hearing before the undersigned VLJ was held in February 2021. A transcript of the hearing is associated with the Veteran's electronic claims file. The Veteran's claim was most recently before the Board in March 2021 wherein it was remanded for additional development. This development was completed and the claim has returned to the Board. After the most recent supplemental statement of the case (SSOC), the Veteran submitted additional evidence and waived agency of original jurisdiction (AOJ) review of that evidence. 1. Service connection for a back disability As outlined in the previous remand, the Veteran asserts that he injured his low back during service and that injury has continued to the present. In the alternative, he asserts that his right foot injury caused or aggravated his current back condition. Finally, the Veteran asserts that his back was predisposed to develop later injuries due to his complaints of back pain during service and/or weakening of his back from his right foot. Thus, his current back problems are a result of that predisposition. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). 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. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Thus, in order to establish that a Veteran has a disability that was caused or aggravated by a service-connected condition, two elements must be established. First, probative evidence must link the two conditions together. Second, the evidence must establish that the condition actually worsened. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran attended a VA examination in May 2021. The examiner assessed a diagnosis of IVDS. While the examiner gave the opinion that the Veteran's foot disability was not directly related to service and did not cause the back disability, the examiner did find that it was at least as likely as not that the Veteran's service-connected right foot injury aggravated the Veteran's back disability: "After performing physical exam and reviewing medical records [...] it is at least as likely as not that the Veteran's back condition was aggravated by his service connected right foot disability [...] due to the increased pressure and weight being placed on the spine since the right foot pain commonly affected the alignment of the posture causing improper alignment, hence back pain. The current back diagnosis is at least as likely as not aggravated due to or the result of the right foot disability because medically there is a pathophysiological relationship between the two conditions." The examiner was unable to ascertain a baseline level of disability. The Board notes that the August 2021 SSOC reviewed this positive opinion, but appears to reject the opinion in contrast to the overall record. However, it is unclear to the Board why the opinion was rejected, especially if the Veteran is to be afforded the benefit of the doubt. In addition to the May 2021 VA opinion, the Veteran submitted a private opinion dated September 2021. Like the VA clinician, the private opinion also noted that the Veteran's altered gait aggravated his low back pain and that the later work injuries further aggravated his low back. See VBMS, document labeled Medical Treatment Record-Non-Government Facility, receipt date October 4, 2021. The Board gives the opinions great probative weight because the clinicians have the medical expertise to render such decisions and have considered the record, including the Veteran's description of his symptoms of an altered gait. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Neither clinician provided a baseline level of severity. However, the Board finds that the probative evidence of record demonstrates that the Veteran's service-connected right foot injury caused the Veteran to limp and thus caused the Veteran ongoing back pain. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In the instant case, the Board finds that the Veteran is competent to report his symptoms of limping and back pain. See Jandreau v. Nicholson, 492 F.3D. 1372, 1377 (Fed. Cir. 2007). These statements were used by the clinicians to determine whether the Veteran had a preexisting back injury prior to his later accidents and were implicitly considered in establishing the baseline level of severity. Thus, the weight of the evidence is for the claim for service connection for a back disability. Accordingly, the claim is granted. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.