Citation Nr: 21067136 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 13-20 668 DATE: November 3, 2021 ORDER Service connection for degenerative disc disease, lumbar spine (claimed as a lower back condition), to include as secondary to service-connected right and left knee arthroplasty residuals and obesity, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that degenerative disc disease, lumbar spine, began in service, is due to service, was caused or aggravated by service-connected bilateral knee disabilities, or that obesity was an intermediate step in the development of the lumbar spine disability. CONCLUSION OF LAW The criteria for service connection for degenerative disc disease, lumbar spine, to include as secondary to service-connected right and left knee arthroplasty residuals and obesity, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air National Guard from February 1975 to August 1975 and in the United States Army from December 1979 to August 1982. This matter comes to the Board of Veterans' Appeals (Board) from a September 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for the Veteran's degenerative disc disease, lumbar spine. The Veteran filed a notice of disagreement in September 2014 and perfected her appeal in July 2016. The present claim has a lengthy procedural history. Significantly, the matter was denied by the Board in April 2018, and subsequently appealed to the Court of Appeals for Veteran's Claims (CAVC or "the Court"). In a March 2020 CAVC Memorandum Decision, the Court vacated the Board's decision and remanded the matter for further proceedings consistent with the decision. Thereafter, in October 2020 and again in June 2021, the Board remanded the matter to ensure compliance with the Court's March 2020 Memorandum Decision, to include obtaining an adequate VA examination and medical opinion. Substantial compliance with the remand requests having been achieved, the Board may proceed to consider the claims. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection The Veteran contends that her degenerative disc disease, lumbar spine (claimed as lower back disability) has been caused or aggravated by her service-connected knee disabilities, to include as a result of a leg length discrepancy and nerve pain. As the Board observed in its most recent remand, the record also reasonably raised the question of whether the Veteran's lumbar spine disability is related to obesity, insofar as obesity may have served as a determinative intermediate step between the Veteran's knee disabilities and her back disability. See VAOPGCPREC 1-2017 (January 6, 2017); see also Walsh v. Wilkie, 32 Vet. App. 300 (2020). For reasons outlined below, the Board finds the preponderance of the evidence is against a finding that service connection is warranted for the Veteran's lumbar spine condition under any reasonably raised theory. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in 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; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Alternatively, service connection may be established under 38 C.F.R. § 3.303 by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303. 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. 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). Obesity itself is not considered a disability for VA purposes, but when obesity has been caused by a service-connected condition, and subsequently causes another disability, obesity may be considered an "intermediate step" for establishing service connection on a secondary basis. See VAOPGCPREC 1-2017 (January 6, 2017). This inquiry extends both to causation and to aggravation. See Walsh, 32 Vet. App. at 306. In Walsh, the Court held that proper interpretation of G.C. Prec. Op. 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability (caused the veteran to become obese/aggravated the veteran's obesity); (2) if so, whether the (obesity/aggravation of obesity) as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for (obesity caused/obesity aggravated) by the service-connected disability. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Id. at 305. In deciding whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. Turning to the evidence of record, the Veteran's service treatment records (STRs) indicate that she complained of back problems on numerous occasions while in service. In June 1980, for example, the Veteran was seen complaining of left sided back pain with minimal tenderness. At that time, she was placed on a profile, restricted from prolonged sitting, lifting greater than 20 pounds, and running. She was seen again complaining of back pain for six days in July 1980 and again in August 1980, described as an "intermittent dull, achy, low back pain." Throughout service, however, she denied any injury or trauma to her spine and it is noteworthy that her August 1982 separation examination noted her spine evaluation as "normal," and she self-reported her health as "excellent." After service, there is no indication of any complained of back problems until nearly two decades later. That is, the Veteran first reported back pain in 2001, when she was working as a nurse's assistant lifting and moving patients. An examination revealed that she had complete range of motion (ROM) in her back and no muscle loss. She was diagnosed with a back sprain. As an aside, the Veteran has been service-connected for her bilateral knee disabilities since a 2006 rating decision. It is noteworthy that she underwent several surgical procedures related to her lower extremities, to include a left total knee arthroplasty in June 2007 and two right total knee replacements in 2008 and 2009. It is also well documented that she has a left leg length deficiency compared to her right leg with complaints of bilateral knee nerve pain. In September 2010 she reported suffering lower back pain that was "aching, throbbing, sharp, burning, and continuous." She claimed to have been suffering varying levels of this pain for the past 20 years and stated that her pain was related to an injury she had suffered as a result of a fall. Subsequent examination and a magnetic resonance imaging (MRI) revealed mild degenerative disc disease which was treated by lumbar epidural steroid injections in November 2010. Her degenerative disc disease of the spine was later observed in a 2012 MRI. A VA examination in August 2013 diagnosed degenerative disc disease but found no signs of radiculopathy. The examiner concluded that the osteoarthritis in the Veteran's back was less likely than not proximately caused by her knee condition. The preponderance of medical evidence, he observed, did not support the theory that disability in one joint causes a disability in an adjacent or contralateral joint, absent inflammatory arthritides or ankylosis. The examiner further opined that the condition was more likely due to aging or the Veteran's gain in body mass index (BMI). A second VA examination in September 2013 also concluded that there was no nexus between the Veteran degenerative disc disease and her military service. In August 2018 her representative characterized the basis of her back disability not as directly service connected, but as secondarily caused by her knee disabilities: "The evidence of record establishes that although the Veteran had some complaints of back pain in-service, Veteran asserts her issues with her lumbar spine have been caused by the progression of her service-connected knee disabilities." In January 2021 a VA examiner reviewed the Veteran's medical records and conducted an in-person examination. The Veteran indicated pain and tenderness in her lower back, particularly when she walked. Though she had seen a specialist for treatment of the pain, she reported, she had stopped and had been using Lidocaine patches from at least as early as March 2018, which helped "some." The Veteran's range of motion (ROM) was assessed as "abnormal" and measured as forward flexion: 0 to 90 degrees; extension 0 to 30 degrees; right lateral flexion 0 to 25 degrees; left lateral flexion 0 to 25 degrees; right and left lateral rotation 0 to 25 degrees, which constituted a slight decrease from her wholly normal ROM from the previous tests in 2013. Pain was noted in all areas of ROM, as well as when weight bearing, resulting in functional loss, though there was no additional loss in repetition or flare-ups. The examiner observed no muscle loss or atrophy, no muscle spasms, no signs or symptoms of radiculopathy, and no ankylosis. In a follow-up note, she stressed that she did not see, nor did her medical a Trendelenburg gait which would have signaled major muscle or nerve damage that might indicate damage to her spine. The examiner diagnosed degenerative disc disease and concluded that it was less likely than not proximately due to her service-connected knee disabilities. He observed that the medical literature does not demonstrate a causal connection between arthritis in one joint and the development of it in another that is, it does not spread from one joint to another or cause damage to it. Similarly, the residuals of knee surgery were not related to the Veteran's degenerative disk disease in her lower back and the residual knee disorders were "separate entit[ies] entirely." The consensus of studies of degenerative disc disease, he explained, indicate that age and genetic factors have far greater influence in the development of degenerative disc disease in individuals than environmental factors such as smoking, occupation, exposure to vibration, and similar circumstances, which are only minor contributors. The Veteran's obesity, the examiner determined, was not related to her degenerative disc disease either. The two conditions were, like the residual knee conditions, "entirely separate." Obesity, as the examiner explained, "is primarily a matter of consuming more calories than the body burns off, which is a choice." Additionally, there are forms of exercise not precluded by orthopedic conditions there are paraplegics, he pointed out, who are not obese. Furthermore, according to her medical records, she appeared to have lost weight at various times, 13 pounds between September 2016 and December 2016, for example, and six pounds between April and July 2018. In July 2021, after remand from the Board, a second VA examiner reviewed the Veteran's records. The examiner concluded that it was less likely than not that the Veteran's degenerative disc disease was proximately due to or the result of her left and right knee arthoplasty residuals. He explained that the peer reviewed medical literature does not support knee conditions or leg length discrepancies as causative agents of lumbar arthritis. He further opined that there was no evidence that the Veteran's knee conditions had aggravated her lumbar spine degenerative arthritis beyond its natural progression. Comparing an April 2020 X-ray of the area to one from April 2018, he noted, that the radiologist had detected no significant interval progression in the multilevel degenerative disc disease and osteophytosis. Thus, he concluded, it was less likely as not that the Veteran's lower lumbar arthritis was aggravated beyond its natural progression by her right and left knee conditions or leg length. The examiner also addressed the issue of the possible cause and effect of the Veteran's obesity. He rejected a connection between her right and left knee and leg disabilities as a cause of her obesity, opining that it was less likely than not that the service-connected disabilities caused or aggravated her obesity. Echoing the January 2021 examiner, he asserted that while exercise is important in preventing and treating obesity, ultimately obesity is brought on in the vast majority of the cases by individuals consuming more calories than they burn. The solution to obesity is to adjust caloric intake to match periods of inactivity, and to find activities which can be performed despite specific physical limitations. Since the knee disabilities did not cause or aggravate her obesity, he reasoned, it could not constitute a substantial factor in causing or aggravating the Veteran's degenerative disc disease. He also rejected the possibility that the Veteran's spine disability would not have occurred but for her obesity causing or aggravating her service -connected knee disabilities. The primary risk factors for disc disease, he observed, are age, sex, and genetics, with obesity and injury playing a much less significant role. Although little was known about her family history, she was a female over 50, he noted, and thus the likelihood that obesity either directly or indirectly- played a significant role in the development of her osteoarthritis was very low. Therefore, it was less likely than not that the Veteran's degenerative disc disease was caused or aggravated by her service-connected disabilities. The examiner concluded his analysis with brief, detailed summaries of the most current literature on the risk factors of osteoarthritis and joint injury. Service connection for lumbar strain and degenerative disc disease, lumbar spine (claimed as lower back condition), to include as secondary to service-connected right and left knee arthroplasty residuals and obesity, is denied. The Board finds that service connection for lumbar strain and degenerative disc disease, lumbar spine (claimed as lower back condition); degenerative disc disease, lumbar spine (claimed as lower back condition), to include as secondary to right and left knee arthoplasty residuals; and degenerative disc disease, lumbar spine (claimed as lower back condition), to include as secondary to right and left knee arthoplasty residuals and obesity, are not warranted. The Veteran had numerous back complaints during service. She expressed no complaints at separation, however, and the examiner assessed her spine as normal. The records do not again show complaints of back pain until 2010, nearly two decades later, and therefore, a "chronic" presumptive condition is not established. See 38 C.F.R. § 3.309(a). Notwithstanding the lack of documentation, the Veteran contends she had continuous and consistent back pain those 20 years. She further contends if not directly incurred in service, her back is likely secondary to her service-connected knee issues and lack of exercise. The pertinent inquiry then is whether the Veteran's post-service spine diagnoses were nonetheless related to or could be etiologically linked to her in-service symptoms of back pain or, alternatively, her service-connected knees. The preponderance of the evidence indicates it could not. All various possible theories of service connection have been developed, and no VA examiner has indicated that the Veteran's current spine condition is related to any incident of service or a service-connected disability. Rather, her spine diagnoses and manifestations have been attributed to age-related degenerative changes. In particular, the Board finds the combined opinions of the VA examiners dated in August 2013, September 2013, January 2021, and July 2021 to be probative, persuasive, competent, and conclusive. These examiners reviewed the claims folder, considered the Veteran's contentions, and conducted a physical examination. Indeed, there is no competent medical opinion indicative of a nexus in this case. The August 2013 and January 2021 VA examiners indicated that the Veteran's lumbar spine degenerative disc disease is a "separate entity" from the residuals of her surgeries, and that age, sex, and genetics play a far greater role in the development of osteoarthritis than environmental conditions such the physical demands of work or unhealthy lifestyle choices. The January 2021 and July 2021 VA examiners specifically addressed the question of whether the Veteran's obesity caused or aggravated her arthritis and both concluded that it was less likely than not that it did addressing the Walsh 3-prong inquiry. See Walsh, 32 Vet. App. at 305. That is, the January 2021 examiner noted that while exercise is certainly important to weight loss, the Veteran's obesity was more related to nutrition and, in any case, she was not precluded from all exercises due to her orthopedic conditions. Indeed, the examiner noted instances where the Veteran was successful at losing weigh through the years by altering her nutrition and finding exercises she could perform notwithstanding her orthopedic conditions. The July 2021 VA examiner specifically found that the Veteran's bilateral knee disabilities were not a substantial factor causing the Veteran to become obese nor could it be said that the Veteran's lumbar spine condition would not have occurred "but for" her obesity and therefore there was no possible cause and effect between the Veteran's obesity and her development of a lumbar spine disability. Echoing the January 2021 VA examiner, the examiner found obesity to be due to caloric intake and a lack of activity despite physical limitations. The Board finds the January and July 2021 VA opinions to be persuasive. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board has considered the Veteran's lay statements. The Veteran herself, of course, maintains that her degenerative disc disease was either caused or aggravated by her service connected right and left knee disabilities. As a lay person, however, she has not shown that she has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). Degenerative disc disease, surgical residuals, and obesity are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that physical examinations as well as the ability to read and interpret X-rays and MRIs, as well as a through familiarity with recent medical literature on the subjects, are required to make such diagnoses. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1377; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board finds the contemporaneous medical evidence, the diagnosis of degenerative dis disease decades after separation, and the VA medical examiners' opinions to be significantly more probative than the lay assertions of record. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. Accordingly, service connection for degenerative disc disease, lumbar spine (claimed as lower back condition); degenerative disc disease, lumbar spine, to include as secondary to service-connected right and left knee arthroplasty residuals; and degenerative disc disease, lumbar spine, to include as secondary to service-connected right and left knee arthroplasty residuals and obesity, are not warranted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Wilkinson, Edward L. 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.