Citation Nr: 21071045 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 09-37 340A DATE: November 29, 2021 ORDER Entitlement to service connection for a back disability is denied. FINDING OF FACT The Veteran's currently diagnosed back disability did not manifest in service or within one year after service, is not otherwise etiologically related to service, and was not proximately caused by or aggravated by his service-connected left and right knee disabilities. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1970 to June 1971. This case comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2013 and May 2017, the Board remanded the back claim because it was intertwined with another claim that needed additional development. In March 2021, the Board remanded the back claim in order to obtain an opinion as to the nature and etiology of the Veteran's back disability. The Board finds that there has been substantial compliance with the March 2021 remand directives. 1. Entitlement to service connection for a back disability The Veteran contends that a back disability began during his service. In the alternative, he contends that service-connected left and right knee disabilities caused or aggravated his back disability. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b). The United States Court of Appeals for Veterans Claims (Court) has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. On examination in May 1970 for entrance to service, the Veteran marked no for history of back trouble. The examiner marked normal for the condition of his spine. The Veteran's service separation form shows that his duties in service were as a refrigeration and air conditioning mechanic. There is no record of treatment in service for back problems. During service the Veteran had treatment for knee problems. He was placed on a profile to avoid certain activities because of his knee problems. In a May 1971 medical evaluation, it was found that the Veteran was not suited for his assigned duties or other in-demand duties because of his knee problems, impairment of his hands, and color blindness. On a medical evaluation board examination in June 1971, the Veteran reported back pain due to heavy lifting. The examiner marked normal for the condition of his spine. In April 1978 the Veteran had an examination for enlistment to reserve service. He marked no for history of recurrent back pain. The examiner marked normal for the condition of his spine. In VA treatment in March 2006, the Veteran reported intermittent arthritis pain in his knees and lower back. Subsequent VA treatment records reflect chronic low back pain. In VA treatment in January 2009, the Veteran reported pain in his neck, low back, and both knees. He stated that in 1976, while working at VA, he had a back injury. In March 2009 he reported that low back pain started in 1976, when he was working as a nursing assistant and turning and lifting patients. Lumbosacral spine x rays showed moderate lumbar instability, disc degeneration and lumbar spondylosis at L3-L4 and L4-L5, and facet joint degeneration at L4-S1. In May 2009 the Veteran wrote that he had a back problem that was caused by events in his active service and was diagnosed during that service. He stated that problems in his knees and his back had worsened over the years. In January 2012 P. M. D., R.N./N.P., a private nurse practitioner, reviewed the Veteran's medical records to evaluate the likely etiology of his back disability. Ms. P.M.D. noted that the Veteran's service medical records documented that he complained of back pain from lifting. According to Ms. P.M.D. a recent study found that "mechanical low back pain was the most common diagnosis in deployed individuals, whereas overuse was the most prevalent [mechanism of injury]." That the same study reportedly found that different military occupational specialties are susceptible to different diagnoses. She opined that the Veteran's MOS of refrigeration and air conditioning specialist caused his musculoskeletal injuries and that the chronic trauma from his MOS further aggravated his back condition. In February 2012, the Veteran asserted, through his representative, that his service duties in refrigeration and air conditioning maintenance had significant effects on his back. On VA examination in August 2012, the Veteran reported that during service his duties presented significant physical demands including bending, stooping, and lifting. He stated that during service he experienced lower back pain with lifting, bending, and squatting. He indicated that after service, in 1976, he had onset of severe low back pain with lifting and moving patients at work. He indicated that low back problems continued through the present. The examining physician noted that 2009 x rays showed lumbar disc degeneration and osteoarthritis. On examination the Veteran's thoracolumbar spine had limitation of motion and evidence of pain on motion. The examiner expressed the opinion that the Veteran's low back disability was less likely than not due to injury or events in service. In explanation, the examiner found that the Veteran's service treatment records did not show back complaints. He acknowledged the report of back pain during the 1971 medical evaluation board but stated that there was never back pain severe to cause a documented impairment of activity. He also acknowledged that back pain with lifting can be a common occurrence due to simple muscular use but explained that the current exam findings of arthritis and DDD were more likely a "life event." In December 2013, VA x-rays of the Veteran's lumbosacral spine showed DDD. In VA treatment in April 2014, the Veteran reported back pain since the 1970s. In October 2014, he stated that his back pain had onset 40 years earlier. He attributed the pain to work demands. In May 2016 lumbosacral spine x-rays showed degenerative changes with mild progression since the 2013 x-rays. On VA examination in October 2020, the Veteran reported that low back pain developed in 1971 with frequent heavy lifting and ladder climbing. He related that after service he worked in nursing services and then in heating, ventilation, and air conditioning (HVAC). He stated that in the 1990s he began to have treatment for his back problems. The examiner found that the Veteran had lumbar spine DDD with degenerative arthritis. The examiner expressed the opinion that the Veteran's low back disorders were less likely than not proximately due to or the result of his bilateral knee disorders. The examiner noted that records of treatment for the Veteran's knee disorders did not indicate that he had a limp. In December 2020, a VA physician reviewed the Veteran's claims file and completed a VA disability benefits questionnaire (DBQ). The physician opined that the Veteran's back disability was less likely than not caused by the back pain reported in service in 1971. In explanation, the physician found that contemporaneous medical records did not indicate that the back pain reported in June 1971 produced disability. The physician noted the finding of normal condition of the Veteran's back on examination in 1978, and the Veteran's 2009 report that back pain began with injury in 1976. In an April 2021 statement, the Veteran asserted that with activity he tried to take pressure off of his disabled knees, and that this adjustment aggravated his back problems. In May 2021, a DBQ regarding the Veteran's back was completed, but no nexus opinion was provided. In a July 2021 addendum, a different clinician expressed the opinion that the Veteran's bilateral knee disability less likely than not proximately caused or aggravated the Veteran's back disability. The clinician explained that the Veteran's medical records did not show any significant alteration of his gait nor any significant shortening of either of his lower extremities. The Veteran has a current back disability diagnosed as DDD and arthritis. While arthritis is included as a chronic condition under 38 C.F.R. § 3.309(a), there is no evidence of arthritis of the back until at least March 2009. As such, presumptive service connection on the basis of continuity of symptomatology is not warranted for this condition. The claim is also denied on a direct basis. The Veteran's June 1971 report of back pain due to heavy lifting is sufficient to satisfy the in-service element. However, the Veteran's claims file contains no information from 1972 through 1977 that addresses the condition of his back. The 1978 examination found that his back was in normal condition. In 2009, the Veteran reported treatment for back pain in 1976 and attributed that pain to a work related injury in 1976. He was diagnosed with arthritis. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). The January 2012 private provider's favorable opinion linking the Veteran's current back disability to the biomechanical stresses associated with working as a refrigeration and air conditioning specialist is not probative as it failed to take into consideration or evaluate the Veteran's post-service medical records. As this opinion was not based a complete understanding of the Veteran's medical history, it is not probative in this determination. See Reonal, 5 Vet. App. at 461. In contrast, the August 2012 and August 2020 VA examiners reviewed the STRs and were fully apprised of the Veteran's entire medical history. The negative medical nexus opinions were supported by a rationale that noted the 1976 work related injury. Both examiners acknowledged the complaint of back pain during the medical evaluation board but found no back pain during service significant enough to result in restriction of activity or cause the Veteran to seek medical treatment. The August 2020 examiner also noted the normal finding on examination in 1978. The Board finds these opinions to be probative with respect to the theory of direct service connection. The greater persuasive weight of the evidence is against a nexus between the 1971 report of back pain and the back DDD and arthritis diagnosed years after service. (Continued on the next page) The claim is also denied on a secondary basis. The October 2020 clinician opined that the Veteran's claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. In a March 2021 Remand, the Board found the opinion inadequate because the examiner did not discuss whether the Veteran's back disability was aggravated by his service-connected bilateral knee disability. Notably, the May 2021 clinician reviewed the medical evidence and medical literature and opined that it "was less likely than not" that the Veteran's back disability is proximately due to or aggravated by his service-connected knee disability. He explained that opinion by noting the lack of significant gait alteration and the lack of leg length discrepancy. He noted that the literature does not support a finding that the Veteran's bilateral knee condition would have any significant impact on his spine or have an etiological basis for the development of DJD. Instead, he opined that it is "at least as likely as not" that the degenerative changes of the Veteran's spine are due to the effects of aging along with wear and tear due to his employment over the 38 years after separation in 1971 until the arthritis diagnosis in 2009. This medical opinion is supported by a detailed rationale. As this medical opinion was factually accurate, fully articulated, and contained a sound reasoning for the conclusion, it is highly probative. In summary, the greater persuasive weight of the evidence is against onset of a chronic low back disorder in service and against continuity of symptomatology or a nexus between the low back pain in service and the current lower spine DDD and arthritis. The greater persuasive weight of the evidence is against the Veteran's bilateral knee disabilities having proximately caused or aggravated his low back disorders. The Board therefore denies service connection for his back disability. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. J. Kunz, 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.